Page:Darden v. Peters - 2007.djvu/11

Rh Maps work. In each of the three letters denying registration, the Copyright Office explained that the changes and additions Darden made to the standard census maps in his Maps work claim were uncopyrightable elements that were insufficiently original or creative to be copyrightable. See Satava v. Lowry, 323 F.3d 805, 812 n. 5 (9th Cir.2003) (noting that “expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law”). Additions to the preexisting maps such as color, shading, and labels using standard fonts and shapes fall within the narrow category of works that lack even a minimum level of creativity; indeed, Darden’s contributions to the preexisting maps resemble the list of examples of uncopyrightable works set forth in 37 C.F.R. § 202.1(a).

Darden points out that courts have recognized that maps have “have an inherent pictorial or photographic nature that merits copyright protection.” Mason v. Montgomery Data, Inc., 967 F.2d 135, 142 (5th Cir.1992); see Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739 (2d Cir.1998). The general proposition that maps are categorically eligible for copyright registration, however, does not establish that the maps at issue here are copyrightable.

Darden also argues that the Copyright Office abused its discretion by failing to credit evidence showing that real estate appraisers, other real estate companies, and Darden’s customers associate these particular maps with Darden’s company. For example, Darden has “received phone calls from people and companies asking whether [he] would license [the] maps for them to use.” J.A. 92. And, Darden’s customers have reported confusion after encountering a competitor’s website that had downloaded Darden’s maps. Recognizing the maps, the customers believed that Darden operated the competitor’s website. Darden asserts that this evidence of association demonstrates that the maps were unique, creative and original.

We disagree. Source identification is the hallmark of trademark law, not copyright. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768–69, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Furthermore, a work is copyrightable at the time of its creation or not at all. Evidence that customers associated the work with Darden is an indication of commercial success over time, not originality. See Paul Morelli Design, Inc. v. Tiffany & Co., 200 F.Supp.2d 482, 487–89 (E.D.Pa. 2002).

We conclude that the Register properly refused to register Darden’s Maps work. Because there was no abuse of discretion, we decline to set aside the decision of the Copyright Office.

With respect to the APPRAISERSdotCOM work, Darden argues that the Register should have granted his application to copyright his website as a compilation. The Copyright Act defines a compilation as a “work formed by the collection and assembling of preexisting materials or of data that are selected,