MERE FACTS VS. PROTECTED EXPRESSION OF FACTS

IVAN HOFFMAN, B.A., J.D.


        It is a well-established principle of copyright law that facts are themselves not protectable by copyright law but that a particular expression, a certain version, of those facts may become the subject of valid copyright protection.  A case out of the Second Circuit Court of Appeals deals with this issue and is worthy of discussion.

        In the case of Sparaco vs. Lawler, Matusky et. al., Sparaco, the plaintiff, was a land surveyor and planner engaged by the defendants to draft a site plan for an assisted living facility.  The parties entered into a written agreement that, among other provisions, provided in part:

The parties hereto acknowledge that the surveyor is the author of the drawings and documents and shall retain all common law, statutory and other reserved rights, including the United States Copyright law, 17 U.S.C. § 101 et seq., and thereby retains sole ownership of the copyright in and to the drawings. In recognition of the Surveyor’s claim to ownership and copyright, the Client shall not copy, reproduce, or adapt the drawings or engage in any other activity which would violate the copyright therein without the Surveyor’s written consent.
        Plaintiff duly registered the plan for copyright as a map and a technical drawing.  (Read “Do I Need to Register My Copyrights?”)

        Well, as things would have it, the defendants ended up using a version of  plaintiff’s site plan, which version, the evidence indicated, was substantially that same plan with minor variations.  Civil litigation followed and the issue on appeal was whether or not there were protectable elements of the site plan on which plaintiff could claim copyright protection.

Mere Facts

        Plaintiff relied in part on the definition of “Pictorial, graphic, and sculptural works” under the United States copyright law which defines the same as:

includ[ing] two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. [emphasis added]
        But of course, the law being what the law is, what appears on the surface is often subject to interpretation and in this instance, merely because the statute provides as above does not mean that every single element of a “map” for instance is protected any more than every single element of a book or other copyrighted work is protected.  There are always elements of any work that may be subject to copyright which elements, standing alone, if they are the subject of a claim of infringement, may not be protected.

        The Court noted that at an earlier time in copyright history, parties could claim protection for their work in compiling facts under the theory that there was protectable value to the effort (known as the “sweat of the brow”).  Thus, in those situations, even though what was being compiled was in the public domain and not protectable, the act of compiling made the overall work subject to copyright.  However, starting decades ago, the cases began to reject that position and the line of cases now is fairly unanimous that such sweat of the brow efforts do not afford protection under copyright laws.  The Court cited several cases including International News Service v. Associated Press (holding that the underlying facts in a news story are not protected) as well as Feist Publications, Inc. v. Rural Telephone Service Company (holding that the facts of telephone numbers are not protected).

        Plaintiff also relied on the definition of a “compilation” which is defined by the statute as:

A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. [emphasis added]
        The reasoning behind the current line of law is that copyright protects only “original works of authorship” and mere facts, no matter how much effort is put into the compilation thereof, are not “original works of authorship.”

        The Court concluded that, to the extent that the site plan contained only “facts” those facts could not be protected by copyright.  The Court said:

To the extent that the site plan sets forth the existing physical characteristics of the site, including its shape and dimensions, the grade contours, and the location of existing elements, it sets forth facts; copyright does not bar the copying of such facts.
Protected Expression

        There can, of course, be some protection for the manner of expressing that compilation, such as design elements, or for the manner of arranging the compilation etc.

        Thus, the Court went on to say:

Although a mapmaker is not protected from copying of the factual information conveyed in the map, she is protected from the copying of any originality in the manner of expression employed in communicating the factual information. Without doubt, considerable skill and originality can be exercised by a mapmaker in the setting forth of unprotected information - in the selection or elimination of detail, the size, shape, and density of informative legends, the establishment of conventions relating to color or design to represent topographical or other features, and many other details of presentation.
        While the Court found that the plaintiff failed to produce evidence of the above protected elements in the plan, the Court also said the protected elements could also include “proposed physical improvements.”  The Court cited a few of such elements such as “the building footprint, the contour of the parking lot, the location of curbs, fire lanes, utilities, light poles, trees, grading and contours.” As to these elements, the Court said that to the extent that such “proposed physical improvements” were specifically detailed in the plan, as opposed to a more “conceptual ideas of a general nature,” such improvements, such improvements might qualify for copyright protection.

        Indeed, there was evidence produced in the trial court to the effect that the plan included such details.  Witnesses stated:

The Albert R. Sparaco plan was acceptable to the Town and could have been built as approved.
        And, the Court stated:
Ramapo’s Director of Public Works offered a similar assessment, indicating that Sparaco’s site plan was a very detailed plan . . . upon which the shown project could have been built in conformity with all of . . . Ramapo’s codes and regulations.
        In this regard, the Court distinguished another case on the basis that in that other case, such elements were only generally set forth without sufficient detail.  As to that other case, the Court said that the plan was
“highly preliminary” and at a “very general level of abstraction.” [citation] They consisted essentially of ideas for the expansion of the hospital - vague and general notions relating to placement of elements, traffic flow, and use of engineering technologies. It is a fundamental principle of copyright law that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation [or] concept.”
        Finally, the Court in a footnote noted that because the plaintiff and defendants had settled their breach of contract suit in which the plaintiff was paid some sum in damages, it was somewhat unclear, should the plaintiff prevail in the copyright infringement aspect of the case, whether or not there would be any additional damages.

        For similar issues related to database protection, the reader should look at “Database Copyright Protection (Or The Lack Thereof).”

Conclusion

        As with many aspects of the law, concrete, firm rules that make parties sleep better at night cannot be established to fit all circumstances.  As a result, decisions in this area, as with other areas of the law, are handled on a case by case basis, requiring legal analysis.

        Which makes lawyers sleep better at night.

© 2002 Ivan Hoffman.  All Rights Reserved.

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This article is not intended as legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.

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