Darden v. Peters
| Decision Date | 24 May 2007 |
| Docket Number | No. 06-1177.,06-1177. |
| Citation | 488 F.3d 277 |
| Parties | William DARDEN, Plaintiff-Appellant, v. Marybeth PETERS, Register of Copyrights, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Sandros, Associate General, A. Renee Coe, Senior Attorney, United States Copyright Office, Washington, D.C.; Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Washington, D.C., for Appellee.
Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Judge WIDENER and Judge DUNCAN joined.
William Darden filed this action under the Administrative Procedure Act against Marybeth Peters, Register of Copyrights, seeking to set aside a decision of the United States Copyright Office denying Darden's applications for copyright registration. See 5 U.S.C. § 706(2)(A); 17 U.S.C. § 701(e). Finding no abuse of discretion in the Register's refusal to issue a copyright registration for Darden's works, we affirm the district court's grant of summary judgment to the Register.
Darden created a website called "appraisers.com," an online referral service for consumers to locate real estate appraisers throughout the United States. The website features a series of maps that enable a user to find an appraiser in a desired location by pointing to and clicking on the appropriate map. The homepage of appraisers.com features a stylized map of the United States that serves as a link to a separate page displaying a detailed map of any state selected by the user. The state maps, in turn, are divided into counties; the consumer can retrieve a list of local appraisers by selecting the appropriate county.
In developing his website, Darden hired Sean Pecor, a web designer, to create the maps. Pecor started with a digital Census map of the United States, colored the map blue, and added shading to give the map a three-dimensional effect. Pecor selected a font to use in labeling the states, and he added call-out labels as well. Pecor used the same process for the individual maps of each state. After completing the project, Pecor assigned Darden any copyright interest he held in the maps and the design of the website.
In May 2002, Darden filed an application with the Copyright Office seeking to register his website, which he titled "APPRAISERS dotCOM" for purposes of the application, as a technical drawing. Darden described APPRAISERSdotCOM as a derivative work based on "US Census black and white outline maps" and "clip art." J.A. 125. Darden's application identified "graphics, text, colors, and arrangement" as the material that he added to the preexisting work and in which he claimed copyright protection. J.A. 125. Additionally, Darden filed a separate application for registration of the work "Maps for APPRAISERSdotCOM." J.A. 286. Darden described his "Maps" work as a derivative work that, similar to the "APPRAISERSdotCOM" work, was based on preexisting "US Census black and white outline maps." J.A. 287. He claimed copyright ownership in the additions made by Pecor to the preexisting census maps: "font and color selection; visual effects such as relief, shadowing, and shading; labeling; call-outs." J.A. 287.
The Examining Division of the Copyright Office rejected both applications. With respect to Darden's claim in the Maps themselves, the examiner concluded that the work "lack[ed] the authorship necessary to support a copyright claim." J.A. 119. The examiner explained that "[i]n order to be copyrightable, a work of the visual arts must contain a minimum amount of pictorial, graphic, or sculptural authorship" and that "[c]opyright does not protect familiar shapes, symbols, and designs . . . [or] mere variations of typographic ornamentation, lettering, fonts, or coloring." J.A. 119. The labeling, relief, shadowing and shading that Darden contributed to the preexisting maps, the examiner concluded, are standard elements that do not contain copyrightable authorship.
As for Darden's application to register his APPRAISERSdotCOM web pages as a technical drawing, the examiner first noted that the work "does not appear to contain any technical drawing." J.A. 120. Regarding Darden's claim for "graphics," the examiner determined that "[a]ll of the graphic elements appear to consist only of the preexisting outline maps and some simple colored rectangles" and thus the added material was not sufficiently original to warrant copyright protection. J.A. 120. Darden's variations in color were rejected on the same basis. The examiner observed, however, that "[t]he work contains text and perhaps a compilation which can support a copyright claim, if they are original" and indicated that Darden could pursue registration of an original compilation by filing a new or amended application that "omitt[ed] any reference to `technical drawing,' `graphics,' or `colors.'" J.A. 120.
Darden sought reconsideration by the Examining Division of the Copyright Office. With respect to his application for registration of the Maps work, Darden argued that the maps had a sufficient level of creativity to warrant copyright protection because of J.A. 100. In support of his request for reconsideration, Darden submitted a written "declaration" from Sean Pecor who asserted that, even though he used preexisting census maps as the basis of his work, "each map was altered to such a degree that each line on each map is measurably changed from the digital originals . . . obtained from the U.S. Census." J.A. 116. Specifically, Pecor "resized the maps and redrew many of the anti-aliased lines" so that "during scale down of [the maps], [the images would not] get a `chunky' look." J.A. 116.1 Pecor claims he also "created a three-dimensional effect by repeating each outline several times—one bright blue outline slightly askew, one darker outline slightly askew, etc." J.A. 116.
Darden submitted an amended application for registration of the APPRAISERSdotCOM work. The revised application indicated that the nature of authorship was a "compilation and arrangement of maps, text, graphics, and data" as opposed to a technical drawing as indicated in the original application. J.A. 107. Darden described the new material in which he claimed copyright as "[t]ext; map designs and formats; compilation, formating, and arrangement of text, maps, graphics, and listing data." J.A. 108. Darden made clear that he was asserting no claim in "the content of the listing data." J.A. 108.
The Examining Division denied Darden's request for reconsideration and registration of his copyright claims. The examining attorney explained that
[i]n the case of a derivative work, copyright protection covers only the additions or changes appearing in the work for the first time . . . mean[ing] that the new material must contain a sufficient amount of original and creative authorship to be copyrightable. Copyright does not extend to any preexisting or previously registered material. . . . [W]here the new material consists solely of the uncopyrightable elements such as a change of layout, format, size, spacing or coloring, registration is not possible.
J.A. 94. The examiner concluded that the changes made to Darden's maps work "amount[ed] primarily to layout and format as well as de minimis compilation" and therefore lacked "a sufficient amount of originality and creativity to support a copyright registration." J.A. 97-98. With respect to the APPRAISERSdotCOM work, the examiner again suggested the possibility of a registrable claim "in only the `text and compilation of data'" but indicated that a new application, revised to limit the claim to "`text and compilation of data,'" was required. J.A. 98.
Darden then sought review of the denial of his applications by the Copyright Office Board of Appeals. Darden's argument was essentially identical to that asserted in his request for reconsideration:
Mr. Darden is not seeking a copyright on one particular design element of the maps in question, nor is he asking for protection of "simple combinations" of elements such as "familiar shapes, symbols, and designs; mere variations of typographic ornamentation, lettering, fonts or coloring." Mr. Darden requests protection for the overall pictorial expressions of his maps.
Mr. Darden's overall design, his special combination of font and color selection, selection and arrangement of geographic locations such as counties, visual effects such as relief, shadowing, and shading, labeling, and call-outs provide the "creative spark" that make[s] the maps original and eligible for protection.
J.A. 87. Darden also presented his own declaration in which he stated that he had "received calls from people and companies asking whether I would license our maps for them to use on their web sites ... [demonstrating that] people recognize the maps as being unique and proprietary to us." J.A. 92.
The Board of Appeals again affirmed the denial of registration for both the Maps and the APPRAISERSdotCOM works. With regard to the copyright claim in the maps themselves, the Board concluded, as did the Examining Division, that the maps were merely "representations of the preexisting census maps in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent."...
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