Copyright in maps: graphic elements or compilation, or both?

Nielsen Company (US), LLC v. Truck Ads, LLC, 2011 WL 221838 (N.D. Ill.)

Nielsen has created maps that divide the US into geographically-distinct marketing regions, known as "designated marketing areas" or DMAs. Nielsen sued Truck Ads for reproducing Nielsen’s DMA maps on Truck Ads’ website. Truck Ads counterclaimed for a declaratory judgment that the DMA data and regions depicted on the maps are not copyrightable and alleging copyright misuse. The court granted Nielsen’s motions to dismiss.

Nielsen alleged that it designed its maps using “a set of proprietary criteria and testing devices, as well as the experience and judgment of its analysts, to partition regions of the United States into geographically-distinct marketing regions, or designated marketing areas (the 'DMA Regions')...." The maps graphically depict its proprietary DMA regions and "are the product of a creative selection, arrangement and expression of variables and data sets" because the regions are ones that “Nielsen has determined constitute meaningful marketing areas." Nielsen also "produces statistical and demographic data and analyses based on its proprietary testing and research methods for each DMA Region," known as DMA data.

So far as the court was aware, it was only on the Truck Ads website that an internet user can find up-to-date nationwide DMA maps broken down to the county level. Truck Ads uses the maps to define advertising regions that it and its affiliates use to provide ads on the sides of trucks.

Nielsen alleged that Truck Ads’ use of the maps violated its copyright rights.

Nielsen argued that it was not now claiming that Truck Ads violated any copyright in DMA regions or DMA data, such that there was no subject matter jurisdiction over the validity counterclaim. Truck Ads argued that it currently uses and displays demographic and ranking data associated with DMA regions, obtained from the same place Nielsen gets it—the Census Bureau.

There was no justiciable controversy over census data, copyright to which was not claimed by Nielsen (nor, of course, could it be). The lawsuit is focused on the maps, which Nielsen contends are original compositions warranting copyright protection. Maps can be protected regardless of whether the underlying data are in the public domain or not. (Thus, creative choices in coloring the regions might be protected, in which case all a secondary user would need to do would be to take its own map of the US and color it in differently—if, and this is a big if under current doctrine, the choices in identifying the regions are noncopyrightable.)

Truck Ads argued that DMA regions don’t exist in any expressible form other than DMA maps, but the court accepted that it was plausible that region information could be represented in non-graphical form, such as a list of zip codes.

Nielsen alleged that Truck Ads created its map “not by reviewing and analyzing publicly-available data on its own and presenting that data in graphic form, but instead by simply copying Plaintiff's work.” In fact, Truck Ads’ CEO “effectively acknowledges that this is exactly what he has done. ‘If I saw a map that I thought was more accurate on the internet, I would--and more of a consensus that it was the market for the particular designated market area, then I would use--I would make an adjustment, a change.... But, again, all I'm doing is I'm just changing the color of the background of the county. I'm not doing anything else. There's no insignia, no indication there of anything except a county line and some color.’" Treating this statement (if there’s nothing else in the record) as an admission of copying copyrightable content, as contrasted to “reviewing and analyzing publicly-available data on its own” seems dangerously close to a sweat of the brow analysis. We really need to know what’s copyrightable about the maps; it’s not the outline of the states and counties, so if the color is different, what’s left?

The court somewhat puzzlingly quoted Emerson v. Davies, 8 F.Cas. 615 (C.C.Mass.1845) to the effect that a second-comer “has no right to publish a map taken substantially and designedly from the map of the other person, without any such exercise of skill, or labor, or expense,” then said that sweat of the brow was no longer valid. Copyright still extends to non-fact features of a map. “Essentially, Plaintiff and Defendant disagree about whether the DMA Maps themselves depict simple facts that are in the public domain and are represented without the requisite originality to warrant copyright protection, or whether the DMA Maps present an original compilation of public domain facts and proprietary market research in a form that warrants copyright protection.” In other words, they don’t seem to be fighting about the graphic elements; they are fighting about whether the choices that went into designating the regions convert the selection of the regions into copyrightable expression, something also implied by the court’s conclusion that the relevant data might be non-graphically represented.

Nielsen nonetheless argued that the court should not reach the issue of whether the DMA regions and data were protectable, because Truck Ads doesn’t possess or use any of that data other than by publishing the maps. But Nielsen’s threat letters and initial complaint did mention the regions and data separate from the maps. The court suggested that “[b]ecause there is no basis for the conclusion that Defendant actually possesses Plaintiff's DMA Maps or DMA Regions, there may well be no controversy that supports jurisdiction over the declaratory judgment counterclaim.”

Again, I’m puzzled. If the map copyrightability claim depends on selection/coordination, then Truck Ads has copied the copyrightable elements alleged to exist; it doesn’t matter whether Truck Ads possessed the underlying datafiles. But the court also correctly pointed out that the counterclaim merely restates an issue already before the court. To win, Nielsen will have to show that the maps consist of an original compilation, selection, and arrangement of facts. “Making such a case will necessarily require the court to review and consider the data underlying the maps, including the DMA Regions and DMA Data.” Counterclaim dismissed as redundant. Overall, the discussion indicates that this area of the law is really confusing, and if you don't start from a really specific identification of the allegedly copyrighted/original elements, you will likely spin your wheels to little effect.

The copyright misuse counterclaim was that, despite knowing that there was no valid copyright, Nielsen sued anyway. The Seventh Circuit has held that it could be copyright misuse to assert a copyright claim to prevent others’ access to public domain data. However, to constitute misuse, the underlying infringement claim must be wholly lacking in merit.

“A designated market area is not, however, a fixed idea capable of only one form of expression.” Different interpretations of the underlying data can lead to different DMAs. (It is also true that different interpretations of history can lead to different conclusions about what really happened, as in Hoehling, but that doesn’t make those conclusions protectable by copyright. If Nielsen’s DMA is best for purpose—and I wonder what its ads say about that—then there should be no protection. This is not to say that a court won’t ultimately find it protectable, because courts are very incoherent about these kinds of judgment-generated facts outside the context of history.)

Anyway, Nielsen will have the burden of proof on copyrightability, “but at this stage, the court is not prepared to say that its claim of copyright is abusive.”

The ultimate questions will be whether Nielsen’s selection and arrangement reflected sufficient creativity under Feist and whether Truck Ads copied without making its own selection and arrangement decisions.

There may be no copyright if a mapmaker “displays basic factual information and ‘employs standard cartographic features without originality.’" Truck Ads argued that the DMAs are “simple facts incapable of expression in any form other than that in which they have been expressed by Truck Ads and Nielsen,” but didn’t demonstrate that the “inescapable similarities” between its map and Nielsen’s were a function of having translated public-domain data into map form. Moreover, Truck Ads’ own reference to different versions of DMA maps belied any such claim. “It may not be possible to portray a street of a definite slope in two different ways using standard cartographic features; but it is possible to portray a DMA with shifting, manmade, and artificial boundaries in myriad ways.” Note again the slippage between graphic representation (the pictorial element of the work) and definition of the DMA boundaries (the compilation element of the work): if the boundaries of a particular DMA constitute unprotectable facts, then—unless we’re talking about line color and thickness, which the Copyright Office considers generally insufficient to make a map protectable—it’s pretty much like a street with a definite slope.

But anyway, at this stage, the allegations weren’t frivolous, even if Truck Ads has various paths to victory.

Finally, the court found that Truck Ads was unable to show damages from the alleged misuse other than the costs of defense. While it alleged that a potential business partner balked when it learned of the pending lawsuit, the record testimony showed that this was not true.