583 F.2d 448 (9th Cir. 1978), 77-1230, United States v. Hamilton

Docket Nº:77-1230.
Citation:583 F.2d 448
Party Name:037 UNITED STATES of America, Plaintiff-Appellee, v. Edward Sylvester HAMILTON, Defendant-Appellant.
Case Date:October 05, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 448

583 F.2d 448 (9th Cir. 1978)

037

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward Sylvester HAMILTON, Defendant-Appellant.

No. 77-1230.

United States Court of Appeals, Ninth Circuit

October 5, 1978

Page 449

E. Don Copple, Boise, Idaho, on brief, for defendant-appellant.

Dan E. Dennis, Asst. U. S. Atty., Boise, Idaho, on brief, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before KILKENNY, SNEED, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

The defendant in this criminal case admitted making and selling precise reproductions of a map bearing a copyright. The sole issue on appeal is whether the map that the defendant copied was of such originality that its copyright was valid. That inquiry requires us to decide a question of copyright law not addressed by previous decisions in this circuit.

The defendant, Edward S. Hamilton, was charged with two counts of knowing and willful infringement of a copyright in violation of 17 U.S.C. § 104. 1 The district court, sitting without a jury, found the defendant guilty and imposed a $700 fine. We find, as did the district court, that the copyright is valid; and the conviction is affirmed.

The maps involved in this case show the boundaries, roads, terrain, features, and improved areas of Ada County, Idaho. KDB Enterprises, a company which specializes in making maps of the Pacific Northwest and which holds about ninety copyrights for various maps, produced a map of Ada County, Idaho in 1970 and obtained copyright for it. KDB then produced a second map of Ada County in 1973 and received a certificate of copyright covering the new matter included on that map. The defendant here was charged with infringing the 1973 copyright by reproducing this second map, and all that is before us is the validity of the copyright for the map of later date.

Hamilton's principal contention, both here and in the trial court, has been that KDB's 1973 map lacks the quality of originality requisite for obtaining a copyright

Page 450

because it was merely a synthesis of information already depicted on maps in the public domain. The 1973 map did show terrain features which had been physically located by a KDB employee and which did not appear on any preexisting map. But a contribution which is more than merely trivial is required in order to satisfy the originality requirement of the Constitution and the copyright statutes, Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951), 2 and the defendant claims KDB's terrain investigations were so minimal that the 1973 map is not an original work. On the record before us it is a close question whether the extent of the geographic investigation done by KDB was so substantial that, considered alone, it can support the map copyright. We therefore find it necessary to decide whether the map maker's selection, arrangement, and presentation of terrain features which were already either in the public domain or subject to separate copyright (that KDB had a right to use) may be considered as part of the efforts and skill which constitute a cartographer's authorship.

The Third Circuit has held that a map which represents a new combination of information already in the public domain lacks any element worthy of copyright protection. Amsterdam v. Triangle Publications, 93 F.Supp. 79 (E.D.Pa.1950), Aff'd on opinion below, 189 F.2d 104 (3rd Cir. 1951). The Amsterdam court stated that a map may not be put under copyright unless "the publisher of the map in question obtains originally some of that information by the sweat of his own brow." 93 F.Supp. at 82. Thus, under the Amsterdam rule, as applied to this case, only those portions of the map recorded as a result of direct observation of terrain features would support the copyright.

At least three times this court has considered map copyright...

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