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Fourth Circuit affirms refusal of copyright registration: insufficient creativity
May 25, 2007

The Fourth Circuit yesterday affirmed the denial of copyright registration to an individual who had adapted United States Census maps for use on his website. The only changes to the maps were the addition of colors, changing the typeface of the state abbreviations, and a change in layout for some of the state indications. The court affirmed the Copyright Office's determination that the adapted maps were not copyrightable. They were derivative works of the U.S. Census maps, and therefore only the added or changed portions were subject to copyright protection. However, the modifications were entirely "uncopyrightable elements such as a change of layout, format, size, spacing, or coloring," and so the refusal to register was affirmed.

More details of Darden v. Peters after the jump.

William Darden is the owner of appraisers.com, a website where users can find appraisers in a given state or county based on maps displayed on the site. He hired a designer to create the maps, which are adaptations of digital maps prepared by the government in connection with the Census. A comparison of the two maps is shown below:

Census map (larger version--2MB) appraisers.com map

Essentially, the designer took the census map, applied shading and varied the typeface of the state abbreviations. There are also corresponding state maps where the county lines are visible. Darden sought to obtain a copyright registration on the modified maps. The Copyright Office rejected his application, finding that there was no copyrightable material. The appraisers.com map was a derivative work of the Census map. Only the additions or changes to a derivative work are independently copyrightable, and here the only changes to the Census map were "uncopyrightable elements such as a change of layout, format, size, spacing, or coloring," and as a result registration was refused.

Darden appealed through the required appeal process, first to the Copyright Office Board of Appeals, then to the Eastern District of North Carolina (pursuant to the Administrative Procedure Act), and finally to the Fourth Circuit. The Fourth Circuit affirmed the refusal to register. The court first cast aside several meritless issues on the appeal, such as a challenge to the constitutionality of the denial of his registration and that the standard of review should be de novo, rather than the abuse of discretion standard typically applied in appeals of a denial of registration.

On the merits, the court had little trouble affirming the denial of registration. Specifically, the court noted that "Darden's contributions to the preexisting maps resemble the list of examples of uncopyrightable works set forth in 37 C.F.R. § 202.1(a)." That section states:

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:

(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents

The court also rejected the notion that the fact that individual appraisers recognize the maps as coming from appraisers.com could support copyright registration. As stated by the court:

Source identification is the hallmark of trademark law, not copyright. Furthermore, a work is copyrightable at the time of its creation or not at all. Evidence that customers associated the work with Darden is an indication of commercial success over time, not originality.

As a result, the court affirmed the refusal to register. The court reaches the same result with other aspects of the website, including Darden's attempt to copyright the website as a whole as a compilation based on its formatting and layout.

To read the full decision in Darden v. Peters, click here.

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