A Legal Look

September 1, 2004
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Whose documents are they, anyway? Part 3 of 3



To review the first part of this three-part series, click HERE.

To review the second part, click HERE.

The question of "Whose documents are they, anyway?" has a complex answer, one that requires the consideration of several areas of law. In Parts 1 and 2, we discussed case law and contract law in relation to this question. We are now going to explore a third area of the law, and the final one of this series: copyright law. It is important to note at the onset that copyright law will protect the copying of your original documents but not the ownership of the documents themselves. Consider where architects have been with this issue; once hired to provide a set of plans and specifications, those plans and specifications are owed to the owner who contracted an architect's services. The architect's copyright extends to the unauthorized copying of those plans and specifications. To draw an analogy to our topic, copyright law will protect the unauthorized copying of your field books, but will not protect your ownership of the books themselves.

It is also important to know that copyright law does not protect others from using the ideas or information revealed on your map. Copyright law does not protect facts, ideas, procedures, processes, methods of operation, concepts, principles or discoveries revealed on your map of survey, regardless of the form you use to illustrate or display this information. Copyright law pertains only to the literary, graphic or artistic form you use to express these concepts on your map. This would make the outright, unauthorized copying of your map at the local copy center a violation of your copyright. But what couldn't be lifted off your map and put onto another? If the facts, ideas and discoveries on your map are not copyright protected, what's left? The only thing that is left is your compilation and presentation of these facts, ideas and discoveries on your map.

Facts Vs. the Compilation of Facts

Facts are not copyrightable but the compilation of facts is protected. These two concepts came to a head in the case of Feist Publications Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991)[1]. Feist Publications published an area-wide phone book, part of which was copied directly out of the local white pages published by Rural Telephone Services. This case gives us an easy analogy to land surveying. The facts that we discover during the course of performing a survey: monuments found, distances measured, angles turned, occupation in place, etc., versus the compilation of these facts on our map of survey. "To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice"¦ ."[2] "That there can be no copyright in facts is universally understood. The most fundamental axiom of copyright law is that "˜[n]o author may copyright his ideas or the facts he narrates.'"¦ At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976."[3]

""˜No one may claim originality as to facts.' "¦ This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery; the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence"¦ . The same is true of all facts-scientific, historical, biographical and the news of the day. "˜They are not copyrightable and are part of the public domain available to every person.'"[4] The compilation of facts, however, is copyrightable if it possesses the "requisite originality" required by the law. "The compilation author typically chooses which fact to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws."[5] However, this protection has its limitation. "The mere fact that a work is copyrighted does not mean that every element of the work may be protected."[6]

The case of Feist Publications turned on the issue of "creativity." The court ruled that: "The selection, coordination and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection"¦ Rural's white pages are entirely typical"¦ In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity."[7] I'll go out on a limb here and state that the compilation of survey data on a map of survey will, in all likelihood, meet the standard of creativity required for copyright protection. This is a pretty good limb to be on because Amsterdam v. Triangle Publications Inc.[8] basically said the same thing. The issue was the copying of a county map. The court ruled that the map was sufficiently original to qualify for copyright protection even though it was simply a compilation of facts from other maps.

Works Made for Hire

Another important issue relative to copyright is the "works made for hire" principle. Very few licensed land surveyors that I know actually sit down with pen and ruler, or at a computer terminal, and compile their own maps. They hire draftspeople and CADD operators to compile maps and plats of survey. In addition, there is almost always a client who is paying for the map to be compiled. So who owns the copyright: the land surveyor, the draftsperson or the client? Community for Creative Non-Violence v. Reid [9] helps to provide answers to this question. As with Feist Publications, this is not a case involving land surveyors, but the analogy to our business is easy to make. Community for Creative Non-Violence (Community) wished to have a sculpture made (for our purposes we can assume a map of survey). Community hired Reid as sculptor. Community provided the subject matter, Community consulted with Reid on the material to be used, Community approved preliminary sketches, Community paid for Reid's helpers and Community paid Reid in installments as the work progressed. After the sculpture was completed, it was displayed in accordance to a schedule arranged by Community. At no time did the parties ever discuss copyright ownership.

At some point, Reid came into possession of the sculpture and then refused to return it to Community. This is when the parties went to court over the ownership of the copyright. The lower court and the U.S. Court of Appeals reached opposite conclusions, so the case went to the Supreme Court. "The Copyright Act of 1976 provides that copyright ownership "˜vests initially in the author or authors of the work.'[10] As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. The Act carves out an important exception, however, for "˜works made for hire.' If the work is for hire, "˜the employer or other person for whom the work was prepared is considered the author's and owns the copyright, unless there is a written agreement to the contrary."[11]

As you can imagine, Community claimed to be the employer and Reid the employee due to Community's right to control the product and their actual control over the creation of the work. This would make them the "author" of the work under the Act. The Court observed, however, that the Act does not define "employee" or "employment," therefore the appropriate interpretation was to be taken from the common law of agency, "the conventional relation of employer and employee." The Court concluded that Reid was not an employee under the Act but a subcontractor, and therefore the "author" of the work.

An analogy can be drawn for surveyors from the Community v. Reid case. If a client hires a surveyor to prepare a map, and as long as the surveyor maintains his or her subcontractor status, he or she may be considered the author of the work, and thus owner of the copyright. This applies even in the situation of the creation of a subdivision plat where the client may have given a great deal of input to the surveyor in the mapmaking process. Similarly, if a surveyor has employees who compile maps under his or her direction, the surveyor clearly maintains his or her status as copyright owner. A gray area would be the situation where the surveyor subcontracts drafting services, which could put the surveyor in a similar position as Community.

Protect Yourself

Protecting your copyright is a very easy thing to do. Subsequent to the Berne Convention Implementation Act of 1988, there is no requirement that a copyright notice be affixed at all. Copyright notice is completely optional. You basically have to do nothing to be protected. But, you will be afforded greater protection in the event of an action on your copyright if you do affix a notice to your maps and plats. Whether or not you have affixed a notice may also affect your monetary recovery.

The notice to be affixed is simply your name, the "©" symbol or the word "Copyright," and the year of the work's first publication. Additional rights and protections are afforded for taking the next step and registering your copyright with the United States Copyright Office. However, as with the affixation of copyright notice, registration is a good step to fully protect your copyright, but not a requirement.

Ownership is Up to You

We have reached the end of this three part series on the ownership of documents. The bottom line on the subject of "Whose documents are they, anyway?" is to spell out ownership of original documents (instruments of service) in any contract with a client (see Part 2), and-as we have discovered this month-with any subcontractors who may be hired for drafting tasks. This is the only sure-fire way to protect all of your original documents: plats, maps, computer files, field notes, field books and the like. Arguments can be made both ways on the issue of field notes (and the books that contain them). And as we all know, much surveying work is done without a contract. Therefore, the arguments will be left up to you and to your attorney should you have to go to court to defend your rights relative to your field books. I believe the simple ceremony of signing and sealing all of the copies of your maps, in accordance with the Federal Rules of Evidence, transforms them from copies to originals, leaving you with no more originals. This refutes the argument that you can provide more originals after the fact because all of the originals were given to the client at the time service was rendered. However, your personal habits, office routines and the information you keep in digital format may all but eliminate the effectiveness of this argument (see Part 1). And finally, we have seen that copyright law provides some limited protection over the unauthorized copying of your documents, but does little to protect your ownership of the originals themselves. Conclusion: get your ownership rights in writing before you create your work documents.

Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

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