I agree the artist wins the case, but on fair use not prior art. The following quotes in an email essentially kill any possible MTA case:
>“Yes, there are minor differences between your map and the MTA map,” Freundlich wrote in his email. “But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”
MTA acknowledges the artist map is based on the MTA map and acknowledges differences no matter how minor.
The artist's map is based on the facts of MTA subway service and station locations, and common principles of data visualization.
If the artist gleaned facts from the official MTA map, and re-represented them on his own map, that does not make his a derivative work, even if the facts came solely from the map. The facts also could have come from riding every line and noting the station names and locations.
It's like copying a phone book. You can take numbers from AT&T's customer directory and put them in your own phone book, because that's all facts. There's no creative representation there. If the phone book represented the numbers in hand-drawn calligraphy, that visual representation would be protected, but not the factual content; you could still copy the names and numbers and re-render them in your own typeface.
Fair use doesn't even come into it. Naked facts are non-copyrightable. They have no protections whatsoever. Facts are public domain.
Are “trap” entries a thing with phone books like “trap streets” are with maps? That’s how they get people who cross the line of fact: https://en.wikipedia.org/wiki/Trap_street
Yep! In fact, the U.S. Supreme Court decided a landmark copyright case that involved them, although tangentially. In Feist, the Court held that entries in a phone book were not, by themselves, copyrightable. The Court acknowledged that "[f]our of [the listings] were fictitious listings that Rural had inserted into its directory to detect copying," but didn't discuss the importance of those beyond that statement.
Representing information as factual ought to result in it being treated as fact for copyright purposes, even if it's actually fictitious. In addition to opening the publisher up to liability for fraud.
I disagree. Two maps containing the same facts can present them very differently and there is plenty of scope for creative expression. So yes, the facts themselves do not fall under copyright but any non-trivial presentation arguably does.
In this case I think the MTA is still wrong though, just not for this reason.
If you take a factual data set and apply the visualization rules for "pie chart", the result will present similarly to the result of someone else applying the visualization rules for "pie chart" to the same data.
The visualization rules for "transit map" are more open to interpretation than for "pie chart", but if you look at the maps for London, Paris, Shanghai, Washington DC, Chicago, etc., they are almost self-evident:
1. Represent major stations as white circles with black outlines.
2. Represent service lines with easily distinguishable colors.
3. Constrain lines to angles divisible by 45 degrees (Paris divisible by 30 degrees).
4. Represent non-standard service with a dashed, dotted, or broken line.
5. Stations that are connected by pedestrian access are connected on the map. Minor stations, without service interchanges, may be represented by a smaller white dot or a tick mark.
Apply the rules to the facts, and the map appears. Some human tweaking may be necessary for clarity, and that is the only opportunity for copyrightable creativity to creep in.
MTA would need to assert a particular map feature that cannot be derived from applying transit map rules to the MTA transit facts. They did not.
Yes, but a map primarily consists of facts. You can use a map for reference in creating your own map without violating copyright. Your expression of those fact (the map design) just has to be reasonably different.
My comment is definitely an oversimplification that takes into account the rest of the context of the article which outlines all the differences which makes the author's work transformative enough to count. You're right that derivative works aren't a straight up protected use as my comment stated. However, "Not at all" is wrong, because derivative works are protected within the doctrine of Fair Use provided the work satisfies enough of the four-rule doctrine to qualify [1]. Transformative works are a subset of derivative works which are protected [2].
Just to clarify my grandparent comment here, I was thinking "transformative work" when I said it was protected by Fair Use, not "derivative work" as I stated. So I was wrong!
To clarify my sibling response here, I'm acknowledging that statement was wrong. However, to say that _derivative_ works are "not at all" protected by Fair Use isn't entirely accurate either, as they absolutely can be depending on the the judgement and application of the four-point doctrine of Fair Use. The parent comment here cites part of the copyright law, but Fair Use, which I cited, is a core component of the same copyright law that limits the application of the section they cited.
> Lester Freundlich, an attorney for the MTA, told Berman in an email Wednesday that his subway map was “clearly a derivative work of MTA’s current version of the Vignelli subway map.”
The MTA's attorney literally calls his map a "derivative work" which is something that's protected by Fair Use. When I read that in the article, I immediately thought that the artist's response should have been, "Thanks for clarifying that it's clearly a derivative work; so you'll drop the claim now?"
EDIT: For anyone reading this without additional context, I should clarify, derivative works are protected as long as they're transformative, which this seems pretty clearly enough so to count. So, it's less a point that being a derivative work itself means it's protected, than the point that being a derivative work doesn't mean it's not protected like the MTA's attorney seemed to imply.
Depends on how derivative and how transformative and, since Fair Use is a affirmative defense for which merit is decided subjectively, doesn't really matter until you're in court. Fair Use isn't protected, per se, more that it's an exception to copyright being protected if you can convince the judge.
That said, I wouldn't even call what I was looking at derivative. I can barely match the transit lines up for most of it, and the styling is completely different. It goes beyond transformative to just being a unique artistic rendering of the same base system. That's the phone book scenario the article raises to a T.
I agree with almost everything you said. Fair Use is definitely protected though, as it's a core component of the US copyright law that helped shape the rest of the law, not an exception or amendment that was added later. Copyright basically couldn't exist as we know it without Fair Use. However, it is definitely subjective and always evaluated on a case-by-case basis, though there are often precedents set which help you understand the likely judgements of Fair Use before you're in court.
I was definitely being imprecise with my wording though, as I was thinking about a _transformative_ work when I read their attorney say "derivative" work, where a transformative work is a type of derivative work that is protected by [subjective] Fair Use.
I also agree with you though that I wouldn't even necessarily consider this a transformative work of the other map, as that assumes he started with the other map. But just starting with the same facts, which aren't copyrightable, and following standard cartographic conventions while exercising the author's own artistic expression into the final rendition would just be a separate work entirely.
Sounds like we're really in full agreement, some semantics aside, and I think probably more people align with your semantics than mine. Thanks for the clarifications!
Uh, No. Derivative works must be transformative in order to qualify for their own copyright. But simply being transformative doesn't give the owner of the new work rights to do anything with it.
Ex: I write and produce a new SW film, and attempt to sell it without a license from Disney. I'm going to get sued into oblivion, because their copyright still applies, in terms of setting up the setting and characters.
Fair use can apply with derivative works (ex: I make a parody version of Star Wars, such as "Troops"), in which case you may succeed in being able to do stuff with your new SW parody, but you're likely to have to pay a bunch of lawyers a lot of money first if they don't like it. But being derivative doesn't guarantee it's Fair Use.
>“Yes, there are minor differences between your map and the MTA map,” Freundlich wrote in his email. “But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”
MTA acknowledges the artist map is based on the MTA map and acknowledges differences no matter how minor.