Page:Darden v. Peters - 2007.djvu/5

Rh 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 “the special combination of font and color selection; visual effects such as relief, shadowing, and shading; labeling; and call-outs. The information the maps convey could easily be provided in other ways; thus, the author should be allowed to protect his creative efforts.” 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. 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.