http://caselaw.findlaw.com/us-2nd-circuit/1432825.html
In Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340, 347-48, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), the Supreme Court further explained that copyright protection can extend only to original authorship, and that the publication of facts, regardless how much effort was expended in discovering them, is not original authorship. ? The facts set forth in an author's writing were not created by an author's act of authorship, and are therefore not protected by copyright. ?Id. at 348, 111 S.Ct. 1282.
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.
The view developed that historical, scientific, or factual information belongs in the public domain, and that allowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge.
I do wonder if Sparaco was the sole provider of the map, if the scales of justice would have been different.
and
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
so you can copyright the uniformative garish N arrow. 🙂
A NY case 10-15 years ago protected tax maps. Some company was overlaying the tax maps with topographical information and reselling them. Court said copyright infringement.
> http://caselaw.findlaw.com/us-2nd-circuit/1432825.html
>
> In Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340, 347-48, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991), the Supreme Court further explained that copyright protection can extend only to original authorship, and that the publication of facts, regardless how much effort was expended in discovering them, is not original authorship. ? The facts set forth in an author's writing were not created by an author's act of authorship, and are therefore not protected by copyright. ?Id. at 348, 111 S.Ct. 1282.
>
> 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.
Does that mean I can use Rand-McNally for my location maps without worry of copyright infringement?
A survey is a property sketch of the building footprint and it also determines the property boundaries. It also shows easements, encroachments and other physical features such as fence line, shed, patio, swimming pool, etc. in relations to the house. The building line is also on the property and title companies need to verify to make sure that no structure was built past the building setback. It is required as part of the real estate transaction by the buyer's lender as well as the title company.
Existing surveys are allowed to be used for the transaction. Many of them do. Along with the existing survey, the homeowner needs to fill out a T-47 affidavit to indicate if any improvements have been made on the property that could affect the survey. The T-47 is notarized by a notary in the State of Texas.
There are copyright issues on surveys that most real estate agents and homeowners are NOT aware of. When you are in a real estate transaction, you must make sure that the survey to which the party is addressed to is a principal (ie owner) of the survey. The property surveys are not allowed to be used over and over again, changed multiple owners because this property survey is only made and paid for by the names to the party of the transaction when it was ordered new.
Also, only the owners of the surveys are allowed to make copies of the survey. The title company and the real estate agent are not allowed. When the survey is sent to the transaction, there is usually 6 copies - 3 of which is sent back to the surveyor, the buyer's lender and one kept on title company's file. The other 3 is for the buyer to keep.
Some title companies ignore the copyright issues and most lenders do not understand the copyright issues. You do not have a problem until you need to seek the surveyor's involvement on problems of the survey.
The copyright for other party users expires when no principles to the transaction is on the survey. Do your due diligence. Hence, the box on Paragraph 6C(1) of the Texas Residential sales contract becomes much more important as in who will pay for a new survey if a new one is ordered.
So buyers - if you use an existing survey to complete the survey requirement on the transaction, do know that you will not be able to use the survey again in the future when you sell the property. A new one must be ordered. And who will pay for it depends on your negotiation with the other party.
Copyright Issues Relating to Surveys
1. Surveys Constitute Copyrightable Works -
The first issue is whether surveys constitute copyrightable works. In our opinion a survey will, in most circumstances, qualify as a copyrightable work. Section 102(a) of the Copyright Act provides in pertinent part that:
Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: . . . (5) pictorial, graphic, and sculptural works....17 U.S.C. § 102(a).
Given that maps and surveys are analogous works, and given that maps are copyrightable works included in the category of "pictorial, graphic, and sculptural works," it is our opinion that surveys would also constitute copyrightable works. See 17 U.S.C. § 101 and Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992).
Persons or entities that reuse surveys may argue that the merger doctrine applies to maps and surveys. Under the "merger" doctrine, when there is essentially only one way to express an idea, copying the ‘expression’ will not be barred, since protecting the ‘expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law. Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir. 1992), citing Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). By denying protection to an expression that is merged with its underlying idea, an author is prevented "from monopolizing an idea merely by copyrighting a few expressions of it." Id., quoting Toro Co. v. R & R Products Co., 787 F.2d 1208, 1212 (8th Cir. 1986).
It is our opinion, however, that the merger doctrine, in most circumstances, should not effect the protection granted to a survey under the Copyright Act. Courts have found that there are many ways of expressing the idea of putting together boundaries, positions, landmarks, etc. and creating an effective pictorial expression of those locations. See Mason v. Montgomery Data, Inc., 967 F.2d 135, 140 (5th Cir. 1992); Rockford Map Publishers, Inc. v. Directory Service Company of Colorado, Inc., 768 F.2d 145, 149 (7th Cir. 1985). Also see Sparaco v. Lawler, Matusky, Skelly Engineers LLP, 60 F.Supp.2d 247 (S.D.N.Y. 1999).
Under Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 111 S.Ct. 1282, 499 U.S. 340 (1991), the copyright holder must only show that his/her work is an original work of authorship, i.e., that the work possesses "at least some minimal level of creativity." Maps, unlike telephone directories and other factual compilations, have been recognized as having "an inherent pictorial or photographic nature that merits copyright protection." Mason v. Montgomery Data, Inc., 967 F.2d 135, 140 (5th Cir. 1992) (mapmaker must select information from numerous sources, reconcile inconsistencies among those sources, and depict the information according to the mapmaker’s skill and judgment); United States v. Hamilton, 583 F.2d 448, 451 (9th Cir. 1978) ("Expression in cartography is not so different from other artistic forms seeking to touch upon external realities that unique rules are needed to judge whether the authorship is original"). We believe that a court is likely to view a survey as being analogous to a map, at least for the purpose of application of the merger doctrine.
We understand that in most circumstances there are many ways in which a survey may depict boundaries, area, or elevations of land or structures, and that there are many ways of selecting, arranging, and presenting the component parts of the survey. Since this selection, arrangement, and presentation normally requires the surveyor to engage in creative thought, it is in our opinion that a survey will constitute an original work of authorship entitled to protection under the Copyright Act.
2. Reuse That Involves Copying Will Infringe The Surveyors’ Copyrights
Since the surveyors are the "authors" of the surveys, the surveyors are the owners of the copyrights in and to the surveys, absent some agreement to the contrary. 17 U.S.C. § 201. Under the Copyright Act, the owner of a copyright has the exclusive right to reproduce, prepare derivative works, distribute, publicly perform, and publicly display his/her work. See 17 U.S.C. § 106.
Ownership of a copyright, or of any of the exclusive rights under a copyright, is, however, distinct from ownership of any material object in which the work is embodied. "Transfer of ownership of any material object ... in which the work is first fixed, does not of itself convey any rights in the copyrighted work..." 17 U.S.C. § 202. See also MacLean Assoc. v. Wm. M. Mercer-Meidinger-Hansen, 952 F.2d 769, 779 (3rd Cir. 1991); also see Johnson v. Jones, 885 F.Supp. 1008, 1015 (E.D.Mich. 1995). Thus the surveyors may own the copyright in and to their surveys, but the original survey documents provided to the buyers will in most circumstances be owned by the buyers.
According to the "first sale" doctrine, a sale of a lawful copy terminates a copyright holder’s authority to interfere with subsequent sales or distribution of that particular copy. See 17 U.S.C. § 109. Therefore, in our opinion the surveyors’ copyrights would be infringed by another party’s reuse of a survey in subsequent transactions, if such reuse involved unauthorized copying of the survey, but not if such reuse did not involve unauthorized copying of the survey. See Design Options, Inc. v. BellePointe, Inc., 940 F.Supp. 86, 91 (S.D.N.Y. 1996) (The "first sale" doctrine did not permit the defendant to reproduce the designs and to manufacture and sell new versions of the plaintiff’s copyrighted sweater styles, since that right rests exclusively in the plaintiff as the owner of the copyrighted works).
3. Implied Licenses
A buyer of the survey may claim to have an implied nonexclusive license to make further copies of a work. A nonexclusive license may be granted orally, or may even be implied from conduct. Lulirama Ltd., Inc. v. Axcess Broadcast Services, Inc., 128 F.3d 872, 879 (5th Cir. 1997); I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996); Effects Assocs. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990). A nonexclusive license may arise by implication where the creator of a work at a defendant’s request "hand it over, intending that defendant copy and distribute it." MacLean, 952 F.2d 769, 779, citing Cohen, 908 F.2d at 558. Also see Lulirama Ltd., Inc. v. Axcess Broadcast Services, Inc., 128 F.3d 872, 879 (5th Cir. 1997), citing I.A.E., 74 F.3d at 776.
In our opinion, the purchasers of the original surveys would likely be found to have an implied license to make copies of the surveys for the original transactions only. Our opinion is based on the absence of any written contract between the parties limiting the scope of the surveyors’ rights, and in view of the fact that surveyors in most instances likely knew that such surveys would be copied and distributed to the parties involved in the original transaction for which the survey was created.
An implied license for use of the survey for the original transaction does not, however, also constitute an implied license for subsequent transactions. Infringement can occur if the licensee’s use goes beyond the scope of the nonexclusive license. Indeed, there appears to be good reasons for not construing the implied license for the original transaction to also extend to and cover subsequent transactions. Until recently, it was industry knowledge and custom that a survey would only be used for the original transaction, especially since subsequent transactions required new surveys. Thus the parties who contracted to have the survey prepared expected that the survey was being created for the original transaction. As such, it is our opinion that any implied license would not cover reuse of surveys. See MacLean Associates, Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 779 (3rd Cir. 1991) ("Any nonexclusive implied license that [the plaintiff] gave [the defendant] in [the copyrighted work] was, however, limited. Both [the plaintiff and the defendant] knew that [the plaintiff] was developing [the copyrighted work] solely for the [defendant]. Never did [the plaintiff] give [the defendant] any indication that [the defendant] could exploit [the copyrighted work] to the extent that it allegedly did by copying parts of it wholesale into computer programs it would later market generally as a business consultant in competition with [the plaintiff’s] own consulting firm").
It is possible that survey purchasers could argue that they believed that they were buying the right to copy surveys for subsequent transactions. That belief, however, would not by itself change our opinion concerning the scope of any implied license. See Design Options, Inc. v. BellePointe, Inc., 940 F.Supp. 86, 92 (S.D.N.Y.1996) ("an implied license to use a copyrighted work ‘cannot arise out of the unilateral expectations of one party.’ There must be objective conduct that would permit a reasonable person to conclude that an agreement had been reached"), quoting Allen-Myland v. International Bus. Mach. Corp., 746 F.Supp. 520, 549 (E.D.Pa.1990). See also N.A.D.A. Servs. Corp. v. Business Data of Virginia, Inc., 651 F.Supp. 44, 49 (E.D.Va. 1986) ("The creation of an implied license, as in the creation of any implied contract, requires a meeting of the minds").
the rest of reply to last post
4. Remedies For Copyright Infringement
A copyright owner may be awarded the actual damages suffered as a result of any infringement, and any profits of the infringer that are attributable to the infringement that are not taken into account in computing the actual damages. 17 U.S.C. § 504(a)(1). In addition, a copyright holder may be granted an injunction preventing further infringement of the work in question.
In the alternative to actual damages, if the copyright owner has a timely registration, then the copyright owner may obtain statutory damages ranging from $750 (or $200, if the infringement was innocent) to $30,000 (or $150,000 if the infringement was willful), in the court’s discretion. See 17 U.S.C. § 504(a)(2). Copyright notices on the surveys can assist in proving that an infringement was willful and not innocent. In this context "timely registration" means that the work was registered prior to when the infringement began, or within three months after first publication of the work. 17 U.S.C. § 412.
A copyright owner may also be able to recover attorneys’ fees under 17 U.S.C. § 505 of the Copyright Act. As with statutory fees, however, attorneys’ fees are only available if the copyright owner has a timely registration.
5. Summary
Based on the information set forth above, it is our opinion that surveys will be found to be copyrightable works, and that the surveyors will be deemed to be the owners of the copyrights in and to such works. We understand that numerous entities are involved when a survey is used, and therefore in most instances copies of a survey will be made when a survey is reused. If such copies are made, then it is our opinion that such copies would infringe the surveyors’ copyrights in and to the surveys. In the event of such infringement, the surveyor will be able to recover actual damages, and any profits of the infringer that are attributable to the infringement that are not taken into account in computing the actual damages. If the surveyor registered his/her copyright prior to the infringement, then the surveyor can also elect to recover statutory damages, and can potentially recover attorneys’ fees.
6. Recommendations
We recommend that surveyors routinely include copyright notices on their surveys. Such a notice may be in the following form: Copyright 2000 John Doe Surveying, Inc., with the year date being the date that the survey was created. In addition, we recommend that survey agreements include provisions that state that the survey is being provided solely for the use of the current parties and that no license has been created, express or implied, to copy the survey except as is necessary in conjunction with the original transaction, which shall take place within a certain time period (e.g., 6 months) after the survey was provided. Because of the benefits of registration prior to any infringement, we recommend that surveyors consider registering the copyrights in and to their surveys. A surveyor could, for example, register his/her surveys on a periodic basis (e.g., once per year) for a relatively low cost.
http://nysapls.affiniscape.com/displaycommon.cfm?an=1&subarticlenbr=23
POLICY GOVERNING PREPARATION OF TITLE SURVEYS
A. General
1. Abstract of Title should be furnished to the Land Surveyor.
2. For a survey map to be considered valid, it must be signed and certified by a licensed land surveyor registered in the State of New York. All true copies thereof must bear the Land surveyor's embossed seal.
3. All archival information of the surveyor's survey maps, records, files, and data used or generated in the course of preparing a survey shall remain the property of the surveyor or his successors or assigns.
4. The sole purpose of certifying a survey to a title company or lending institution is to confirm the opinion of the Surveyor to his client and to the title company or lending institution for a specific transaction. It is not intended to extend this obligation beyond such transaction, or to additional title companies, lending institutions owners or subsequent owners.
5. All surveys shall conform to or exceed the minimum standards set forth in this Code unless limitations or variances from such standards are clearly stated on the boundary survey map.
6. [NYSAPLS Policy:] "The alteration of boundary survey maps by anyone other than the original preparer is misleading, confusing, and not in the general welfare and benefit of the public. Licensed Land Surveyors shall not alter survey maps, survey plans, or survey plats prepared by others." (NYSAPLS Policy: Adopted January 23, 1993)
7. [New York Law] The New York State Education Law requires that a notation be placed on all altered survey maps: "altered by" followed by: the Land Surveyor's signature and seal, the date of the alteration, and a specific description of the alteration. (New York Education Law: section 7209,sub-division 2)
B. Standard Notes
In order to implement the policy previously stated above, the surveyor should place the following or comparable notes on the boundary survey map:
1. Copyright or Copyright Sign "(C)" (Insert Year and Name of surveyor or copyright owner) All Rights Reserved.
2. Unauthorized alteration or addition to a survey map bearing a licensed land surveyor's seal is a violation of section 7209, sub-division 2, of the New York State Education Law.
3. Only boundary survey maps with the surveyor's embossed seal are genuine true and correct copies of the surveyor's original work and opinion.
4. Certifications on this boundary survey map signify that the map was prepared in accordance with the current existing Code of Practice for Land Surveys adopted by the New York State Association of Professional Land Surveyors, Inc. The certification is limited to persons for whom the boundary survey map is prepared, to the title company, to the governmental agency, and to the lending institution listed on this boundary survey map.
5. The certifications herein are not transferable.
6. The location of underground improvements or encroachments are not always known and often must be estimated. If any underground improvements or encroachments exist or are shown, the improvements or encroachments are not covered by this certificate.
C. CERTIFICATION (Actions That Void Certification)
1. When preparing title surveys, the surveyor should place an embossed seal on all copies along with the following note: "Only title surveys bearing the makers embossed seal should be relied upon since other than embossed-seal copies may contain unauthorized and undetectable modifications, deletions, additions, and changes."
2. A surveyor should place the following notice on work products: copyright label, year, [Name]. "Reproduction or copying of this document may be a violation of copyright law unless permission of the author and / or copyright holder is obtained."
3. When preparing title surveys, the surveyor should place an embossed seal on all copies along with the following note: "A copy of this document without a proper application of the surveyor's embossed seal should be assumed to be an unauthorized copy."
D. RE-SURVEY
1. Subsequent to the initial issuance of a survey map all revisions shall be specifically noted and dated. Every re-survey map bearing a new date shall conform to the requirements of a new survey map unless specifically noted and shall be made only by the original preparer.
what about the governing agencies????
What no has mentioned is . . . do we have an "absolute" right to copyright our maps?
What I mean is many government agencies require back ink on white paper that can be reproducible.
Very often this "reproducible" statement is in the regulations.
Now, if a surveyor were to place a noted copyright on the map stating that the map cannot be reproduced, what happens if the governing agency refuses to approve the map?
Do you, as a surveyor hold to your guns and leave a client hanging on a limb?
Or do you hire an attorney to test the validity of your copyright . . . which also puts you client's use of the document in peril?
I'm just being pragmatic........
Copyright of Surveys in recording states may be moot?
> Very often this "reproducible" statement is in the regulations.
>
This would be covered under the "implied" permissive uses, I would assume?
For me, the key part of the copyright is the protection that it provides the surveyor. My company used to include a copyright notice, but it appears that sometime after the recording act that notice went away.
In a recording state, it seems like you are implying anyone can make a copy as soon as you record it. (And the municipality can sell those copies.)
But, making a copy, and using it and holding someone liable for errors contained therein...that is the big issue I see in a recording state.
Sure you held ROS#xxxxx, but is the surveyor who signed that ROS responsible if his error causes your survey to be erroneous as well?
Copyright of Surveys in recording states may be moot?
No you use another ROS at your risk!! The original surveyor is responsible for his errors but not yours!!
Surveying is not Art and Science...only a math problem
Here is a bit of transcript from a recent Arkansas Board hearing...THE Arkansas State Surveyor is being questioned about putting a copyright on a plat is a false statement:
Q I'm just wondering why you're saying it's false? If it's just -- I'm just trying to preserve my rights that if something came up a hundred years after I'm dead.
A Okay. I can tell you why, you go out, you are hired as an employee, you're employee to whoever hires you, you tell them how much it's going to cost, they pay you, you give them a drawing, and that's what you're expected to do. What part of that do you own? If anybody could copyright it, it would be the owner and there is nobody --
Q I'm the one that produced the art, though.
A There is no art to it --
Q Well, I dis --
A -- it's a math problem.
Q I dis --
A You figure it out on the ground from somebody else's work.
Q Well, I disagree with that.
A Well, yours may be art --
Q Surveying is art and science.
A Well, it may be art and science, but it's still figured out from other people's work.
DDSM:beer:
What if . . .
I put a little poem . . . in very small print . . . on the map somewhere?
Or, I make my own very elaborate north arrow or a funny-face?
I don't think any surveyor is wanting to copyright to not allow the factual information to be used by others to aid them in there projects(the mathematics part of the plat), that indicates that a pin should be fund thusly(which they still need to verify), but they don't want the entire plat to be used by third parties in an extensive manner past it's original use to it's original client.
What if . . .
Exactly! You have hit the nail on the head. That is pretty much what the responding surveyor said during the complaint hearing.
Let me know if you would like a copy of the entire transcript.
DDSM:beer:
Copyright of Surveys in recording states may be moot?
> you use another ROS at your risk...
If I follow your Record of Survey and you are wrong; I'm just as wrong as you are....
Here's a better question:
If your ROS is copied, and used for a permit, and it's wrong; who's liable?
Doug
Surveying is not Art and Science...only a math problem
Are you saying a surveyor was actually reprimanded for putting the notice on the map? Or did it turn out in favor of the surveyor (I hope)?
U.S. 2nd Circuit Court of Appeals, County of Suffolk v. Experian Information (2001)
"We hold that New York State's Freedom of Information Law does not abrogate Suffolk County's copyrights in its official tax maps and find that it is possible for Suffolk County to comply with its obligations under the Freedom of Information Law while preserving its rights under the Copyright Act."
And "...street location and landmarks were'physical facts'-and thus not protected elements-but recognized that the presentation of such physical facts could be orignal."
So they focus on "the overall manner in which [the plaintiff] selected, coordinated, and arranged the expressive elements in its map, including color, to depict the map's factual content."
"The level of creativity required to demonstrate that the work is original 'is extrmely low; even a slight amount will suffice.'"
"tax maps contain a substantial amount of original material, research, compilation and organization wholly original with the plaintiff."
Certainly private surveyors have copyright protection as well.
If I recall, registration is no longer needed to sue for damages, only the copyright notice is needed. Without the notice you still have copyright, just can't get damages.
Surveying is not Art and Science...only a math problem
> Are you saying a surveyor was actually reprimanded for putting the notice on the map? Or did it turn out in favor of the surveyor (I hope)?
They dismissed the complaint but issued a letter of admonishment...
When asked what the penalty for putting a "false" statement on a plat:
MR. ROBINSON: You could up to $5,000, yes, and that's laid out -- you could do a civil penalty up to $5,000, you could revoke his license -- and/or revoke his license, or you may choose to just do a letter of reprimand, that's a decision that the board has to make. But we, the staff, myself, I hope you will consider, not just about Mr. ________, but the message we tell to the industry about this.
MR. BOND: I would move that first we dismiss the complaint and write Mr. ________ a letter admonishing him or directing him to remove that statement on any future documents, and at the same time notify the state land surveyor to advise other surveyors using similar language to remove those statements in any future filings.
MR. HAWKINS: Just for clarification, that similar language would be anything that restricts the use of that document by the public?
MR. BOND: Yes.
MR. HAWKINS: Is that correct?
MR. BOND: Yes.
MR. ENGSTROM: I second the motion
HEARING OFFICER JOHNSON: Okay. The board has unanimously decided to dismiss the complaint, to write a letter admonishing or directing that that language, the language at issue be removed from all future land surveys and to direct the state land surveyor to send a letter out to its members directing the same.
MR. HAWKINS: Correct.
HEARING OFFICER JOHNSON: That that language restricting use by the public of -- of those – of the documents or -- that that be removed.
DDSM:beer:
Surveying is not Art and Science...only a math problem
While I'm sure there are ways the state government can require that filed maps be allowed into the GIS under fair use, the procedure seems mighty broad to me.
I would be asking how this current requirement does not infringe the civil rights of surveyors in the state. Copyright is federal law and constitutionally protected when the legislature decides to grant the protection as they have.
Sounds like a good class action suit for violation of civil rights.
I'm sorry . . .
You mean to say there are surveyors who will use a ROS(filed survey) for the actual data that goes on their survey?
I have never used another surveyor's data without checking it.
Surveying is not Art and Science...only a math problem
In 2003 Knud E. Hermansen published an article "Copyright Basics for Surveyors (pdf)" that should be reviewed and I would suggest forwarded to the legal council of the board that generated this letter. I would be interested to hear the response of that legal council to the content of the article.
