Information Outlook, Vol. 6, No. 11, November 2002
Maps and Copyright
By Laura Gasaway
Geographical maps have been eligible for copyright protection in the United States from the first copyright statute in 1790. To qualify for protection, a map has to meet the standard requirements for copyright found in Section 102(a) of the Copyright 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 standardthe 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 a tangible medium of expression, now known or later developed. Maps have little difficulty meeting the fixation requirement, since by their nature they 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.
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."
Maps are a type of compilation. Section 101 of the Copyright Act 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." The elements that comprise a map are geographical features, graphic displays, and usually at least some minimal explanatory text. Feist v. Rural Telephone1 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 selecting, arranging, indexing, or adding value to the work. One 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. These problems have 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 geographic facts than protecting more fanciful works.2
Early maps displayed much more creativity than maps today do. First, cartographers often were unable to observe all the topographical features of a given area and thus, had to guess how the land looked. Second, the standardization that now exists in the way certain geographic details are depicted is relatively recent.
Some modern maps, including those from satellite photographs, are totally factual. Such maps would lack the requisite creativity to qualify for copyright. Additionally, a huge number of maps are within the public domain. Maps produced by federal agencies such as the U.S. Geological Survey are among those in the public domain. Compilations of maps may be protected even though the individual maps do not qualify for protection; for example, a compilation of county maps that individually lack the necessary originality but that are assembled into a volume. The volume might also contain 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, it would not be copyrightable. The selection of these cities is based on a fact (population size) and therefore would not be generally copyrightable. An original presentation of these cities on a mapsuch as using one city as the focal point and plotting the other 99 cities in a circle around itwould 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, and so on.
Thus, the only reproduction and distribution of maps that could be done for a user is under fair use, though this is much more likely to apply if only a portion of the map is copied.
1 499 U.S. 340 (1991).
2 See 1 Goldstein on Copyright § 2.14.1 (2d ed. 2002).
3 1 Nimmer on Copyright § 208[A][3][b] (2002).
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