September 2002
Geographical maps have been eligible for copyright protection in the United States from the first copyright statute in 1790. In order to qualify for protection, a map has to meet the standard requirements for copyright found in Section 102(a) of the Act. It must be an original work of authorship which means that the cartographer (deemed the “author” for copyright purposes) did not copy the work from someone else. Included in the originality requirement is a creativity standard; the work must possess at least minimal creativity in order to satisfy the originality requirement. The second requirement is fixation. A work must be fixed in tangible medium of expression, now known or later developed. Maps have little difficulty in meeting the fixation requirement since by their nature maps are fixed in a printed graphic format or stored on a computer server to be accessed repeatedly. The originality/creativity requirement is not always so easy for maps to satisfy, however.
What qualifies as a map for copyright purposes? The Copyright Office Regulations broadly define the word “map” to include “all published cartographic representations of area, such as terrestrial maps and atlases, marine charts, celestial maps and such three-dimensional works as globes and relief models.”
Early maps possessed a great deal of creativity. They tended to be produced by explorers/cartographers who actually explored the land then drew maps to reflect the topographical details they observed. These explorers were often said to have “discovered” certain features of the land. In reality, of course, an explorer merely observed the land details and then described them in a visual representation.
In passing the first U.S. copyright law, Congress sought to encourage the production and publication of maps primarily because they were so critical to the westward expansion of the country. One way Congress could encourage exploration was to award copyright in any map a cartographer produced so that he could receive royalties form the sale of copies of these maps and use the proceeds to help fund another expedition.
Maps are a type of compilation. The Copyright Act in Section 101 defines a compilation as “a work formed by the collection and assembling of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Combining the elements that comprise a map represents a compilation of geographical features, graphic displays and usually at least some minimal explanatory text. Feist v. Rural Telephone[1] held that the compilation itself must be creative in order to qualify for copyright, although the standard for creativity is low. What makes a compilation original is the selection, arrangement indexing or adding value to the work. The problem maps may encounter is that they are compilations of facts, and facts are not copyrightable according to Section 102(b). Moreover, the way the geographic facts are displayed graphically is somewhat dictated by custom in the map-making industry. This has resulted in courts holding that maps have only “thin copyright” protection. Additionally, courts have been sensitive to the fact that protecting maps poses a greater threat of monopoly over the geographic facts than protection for more fanciful works.[2]
Early maps had much more creativity than do maps today, for two primary reasons. First, often cartographers were unable to observe all of the topographical features of a given area, and therefore, had to guess how the land might actually look. Second, the standardization that now exists in how certain geographic details are depicted simply did not exist in those days. Today, rivers tend to be colored blue on maps, forest are green and cities are often marked in red with different symbols. The symbols depict the size of the city and whether the city is the capitol of the country or state.
Further, there are modern maps that are totally factual; for example, maps from satellite photographs. Such maps would lack the requisite creativity to qualify for copyright. Additionally, a huge number of maps are within the public domain. For example, those on which the term of copyright has run are in the public domain and may be freely reproduced and distributed. Further, maps produced by federal agencies such as the U.S. Geological Survey are within the public domain.
Compilations of maps may be protected even thought the individual maps do not qualify for protection. A good example is a compilation of county maps where each map lacks the necessary originality but which are assembled into a volume. The volume might also contains a number of indexes, a written history of each county and facts and figures taken from the latest census. The compilation clearly has enough creativity to qualify for protection.
Some courts have required a higher standard of originality for a map. If the map consists of depictions of the 100 largest cities in the world, this would not be copyrightable. The selection of these cities is based on a fact, i.e., population size and therefore would not be copyrightable generally. On the other hand, an original presentation of these cities on a map, such as using one particular city as the focal point and then plotting the other 99 cities in a circle around the one city would be original.[3]
Libraries often have maps in their collections. Unfortunately, copyrighted maps are excluded from the Section 108 exemption that permits libraries to reproduce and distribute works under certain circumstances. Librarians likely would believe that reproducing one map from a collection such as the Rand McNally Road Atlas would be permitted under Section 108(d), but 108(i) says that the rights granted to libraries under Section 108 do not apply to pictorial, graphic or sculptural works except for preservation and those that are published as illustrations to works covered under subsection (d) such as journal articles, books, etc.
Thus, the only reproduction and distribution of maps that could be done for a user is under fair use. The four fair use factors must be applied to determine if the use is a fair use. The third factors deals with the amount and substantiality of the work copied. Copying a small portion of a map might be fair use, but copying the entire map for a user is less likely to be.