This article presents ate overview of the copyrightabillity of plats and ownership of the copyrights. Ownership of a copyright becomes extremely important when a surveying company - whether a sole proprietorship, partnership or corporation-wishes to wishes to sell out. The company valuation will depend on, among other things, such assets as equipment, real estate holding(s), and other property, including intellectual property. Intellectual property is intangible personal property. It results from an individual's creative effort which is reduced to a fixed medium; in this case, a plat. This is in contrast to tangible personal property such as automobiles, homes, clothes, and land.

Intellectual property can be protected. Patent, copyright, trade secret, and trademark are available forms of protection. In general, copyright protection governed by federal statutes grants the holder exclusive right to exclude others front making, using, or selling the intellectual property for a specified, limited period of time.

   This article is restricted to discussing:

1. copyrightability of maps (plats);
2. ownership of the copyrighted work; and
3. transferability of a copyright.

The analysis in this article is limited to work performed by a surveyor without a written contract. It is further assumed that the arrangement between the parties is that of employer and independent contractor. The following scenario, which is intended to be realistic, sets the parameters of the analysis:

A small firm receives a call to conduct a survey of a residence for the owner/occupant. The work is performed without a written contract. Upon completion, the survey plat is drawn, sealed, and delivered to the property owner. The survey firm retains a copy for its archives. The firm continues to opterate in this manner for many years. The firm's owner- decides to retire and wants to sell his professional practice, including all equipment and records. A potential buyer questions the ownership rights of the records, including the plats, which the firm has archived over the years.

The Copyright Act of 1976¹ is the statutory body of law that governs copyrightable subject matter. The Act stipulates that works must be original and fixed in a tangible medium of expression.² These criteria are required by the copyright clause of the Federal Constitution. These restrictions on

The Copyright Act of 1976 sets out seven enumerated categories of works of authorship including "literary works."⁴ Compilations are literary works (17 U. S. C. A. § 101) and proper subject matter of copyright protection.⁵ A compilation is "A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship" (17 U. S. C. A. § 101). Copyright protection in a compilation extends only to the material contributed by the author.⁶ Furthermore, copyright protection extends only to the expression of the idea, not the idea itself.⁷ In other words, when the author's contribution is in the arrangement of facts, only the arrangement is protected (Rockford Map v. Directory Service⁸). Thus, when a compilation contains only public domain materials such as facts, which are not proper subject matter for copyright protection, the author's original selection, coordination, or arrangement is proper subject matter (ibid.). Copyright protection of this compilation extends to protecting against the copying of selection, coordination, or arrangement, not against the copying of the unprotected (public domain) material.

The Supreme Court in Feist⁹ concerned the extent of copyright protection available to telephone directory white pages. The case centered on the interaction between two propositions: facts are not copyrightable whereas compitlations of facts generally are copyrightable (ibid. at 342).

Feist requested a license from Rural for its listing of customers' names, addresses, and phone numbers to be used in Feist's own publication. Rural refused to license its listings to Feist. Subsequently, Feist used the listings without Rural's consent. Feist employees verified Rural's data and sought to obtain additional information for each listing. The resulting typical Feist listing included the individual's street address; most of Rural's did not. Feist's publication contained 46,878 listings, 1309 were identical to Rural's 1982-1983 white pages including four fictitious listings that Rural inserted to detect copying (ibid.).

The most fundamental axiom of copyright law is that "no author may copyright this ideas or the facts he narrates" (ibid, citing Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U. S. 539, 556, 105 5. Ct. 2218, 2228 (1985)). The key to understanding why facts are not copyrightable is that the sine qua non for copyright is originality (Feist at 340, 539, 11 S. Ct. 1282, _ (1991)). To qualify for copyright protection, a work must be original to the author, independently created, and possess at least some minimal degree of creativity ("modicum of creativity") (ibid.).

The court in Feist concluded that a factual compilation is eligible for copyright protection if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement and not to the facts themselves. The names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. Copyright protects elements of a work that possess more than a de minimis quantum of creativity, for which Rural's alphabetically arranged subscriber information fell short of the mark (ibid., at 346).

In Rockford Map v. Directory Service (768 F. 2d 145, 226 U. S. P. Q. 1025), a publisher of a plat map showing location, size and ownership of parcels of land filed suit claiming that another publisher had violated the copyright laws. Rockford Map Publishers (Rockford Map) makes plat maps of rural counties Rockford Map starts with aerial photographs

   The copyright laws are designed to give people incentives to produce new works; input of time is irrelevant: "The contribution of a collection of facts lies in their presentation, not in the facts themselves" (ibid., at 148).

Here, Rockford Map made a contribution. Its employees dug through the records and turned the legal description into a pictorial presentation resulting in copyrightable subject matter, regardless of the speed at which the employees could do the work (ibid., at 149).

Following Feist, a plat generated from factual compilations may be original even though it closely resembles others so long as the similarity is not the result of copying. It follows that a surveyor using public domain data can select and arrange the data in a way that is original to the surveyor and the resulting plat will be eligible for copyright protection The way in which the surveyor chooses, arranges, and presents all the information, including the underlying metes and bounds, is what is copyrightable­not the metes and bounds themselves. The underlying metes and bounds are facts which are precluded from copyright by the doctrine of merger (17 U.S.C.A.. § 102(b), above): these facts can only be expressed in one way and thus cannot be copyrighted.

Under the Act, the author of a copyrightable work initially receives ownership of the copyright.¹⁰ Under Certain circumstances, however, the author is not the

owner of the copyright. The person for whom the work is made is the owner of the copyright and is considered the author for the purposes of the Act, in the absence of an agreement to the contrary.¹¹ The Act requires that the agreement be in writing signed by them (§ 201 (b)), and defines specific categories of specially ordered or commissioned works which, if the parties agree in writing, will be considered as "works made for hire."¹²

The Supreme Court, in Community for Creative Non-Violence v. Reid (490 U.S. 730 (1989)) (CCNV), states that, 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 is entitled to copyright protection." The Act provides for an important exception for "works made for hire" (in §§ 201 (b) and 101, see above). The Court concludes that a work for hire can arise from one of two mutually exclusive means: one for employees and one for independent contractors (at 730, 743). In determining whether a work is made for hire under the Act, the court must ascertain whether the work was prepared by an employee or by an independent contractor, and then apply the appropriate subsection of § 101 of the (Copyright Act (ibid., at 751). Determination of whether a hired party is an employee rests on a consideration of the relevant factors set out under the general common law of agency, and no one factor is determinative.¹³

In CCNV, a nonprofit organization dedicated to eliminating homelessness in America, decided to participate in a Christmas pageant by sponsoring a display to dramatize the plight of the homeless. CCNV wanted a sculpture of a modern Nativity scene consisting of homeless people huddled on a streetside steam grate. CCNV commissioned Reid to produce the sculpture depicting the homeless for a fee of $15,000 pursuant to an oral agreement. Neither party mentioned copyright.

Days after the pageant, CCNV returned the sculpture to Reid for minor repairs. Subsequently, Reid refused to return the sculpture due to

The Court, applying the relevant agency factors, determined that Reid was an independent contractor. Reid was highly skilled, provided his own studio, was retained for a short period of time. and paid a sum dependent on percentage of project completed. Additionally, CCNV did not have a reqular business, did not pay payroll taxes, did not pay benefits to employees, nor did CCNV contribute to workers' compensation or unemployment funds. Since Reid was an independent contractor, whether the sculpture is a work made for hire depends on whether the terms of § 10 (2) are satisfied. Although the sculpture was specially commissioned, it was not for use as a contribution to a "collective work."¹⁴ A sculpture is not enumerated in the statute. Thus Reid was the owner of the copyright.

Court in CCNV to our hypothetical scenario, one must:

1. ascertain whether the surveyor is an employee or independent contractor under § 101, and
2. determine which subsection of § 1()1 applies.

A surveyor is a skilled individual who provides his or her own tools and instruments, is involved in the hiring and paying of assistants, and typically pays all relevant taxes and employee benefits and insurance. Additionally, the surveyor has discretion over how long and when to work as well as over the duration of the survey contract. On the other hand, the hiring party usually does not have the right to assign other tasks to the surveyor, has to pay according to a schedule of payments set out in the survey contract, and the relationship between the parties is typically short lived. Indeed, all these factors weigh heavily against finding an employer/employee relationship between the hiring party and surveyor. Rather, one can likely conclude that a surveyor is an independent contractor.

Having concluded that the surveyor in our hypothetical case is an independent contractor, whether the plat is a work for hire depends on whether the terms of § 101(2) are satisfied. We have already determined that a plat may be copyrightable subject matter because it is a compilation. And, as long as the compilation satisfies a modicum of creativity, a plat is a work made for hire. In the absence of a written agreement to the contary, this vests presumptive ownership of the copyright in the person for whom the work was prepared (§ 201 (b), above).

Unlike Reid in CCNV, , where a sculpture was not enumerated in the statute, a compilation generated by the surveyor is specifically addressed by the statute as a literary work.¹⁵ Thus a plat qualifies as work made for hire as long as "the parties have agreed in a written instrument signed by them that the work shall be considered a work made for hire" (§ 102(2)).

Although the parties have a written instrument that is signed designating the plat as "work for hire," copyright ownership is still presumed in the person for whom the work was prepared unless the parties have expressly agreed otherwise in a written instrument signed by them (§ 201 (b), above). The surveyor must prepare a contract which provides that the work to be conducted is a "work made for hire" and that a copyright, if available, will be the property of the surveyor. Thus a homeowner or company, not the surveyor, may be the owner of the copyright in the absence of an agreement to tile contrary

The transfer of ownership of a copyright is covered by the Copyright Act 1976, § 201(d)(1).¹⁶ The Act provides that the surveyor's rights in the plat(s) are "divisible, may be transferred and owned separately, and the owner of any separate exclusive right may bring suit for its enforcement" (ibid.) Since a plat can be joint authored,¹⁷ creating joint copyright ownership, the joint owners have the right to use the work individually and to license others to use the work, as well as the duty to account to all other co-owners for profits absent an agreement to the contrary.¹⁸

The surveyor considering a sole proprietorship, partnership, or corporate form of business must address the issue of protecting potentially valuable property. This property must be protected while the business is operating as well as provisions made for it when the business comes to an end. A proper business plan must include aprovision to distribute this intangible personal property upon dissolution of the business entity. Distributing and/or disposing of this property can have profound tax consequernces for all parties invloved

The surveyor can be almost certain that, in the absence of copying, the plat generated from available public domain sources is copyrightable when a modicum of creativity is shown That is, an original selection, arrangement, and placement of the information on a plat may qualify for protection. Furthermore, the surveyor in most instances will be declared art independent contractor but not the owner of a copyright unless specific precautions are taken to preserve that right. The surveyor must at all times have a written instrument signed by all parties designating that:

1. the resulting plat is a work made for hire, and
2. ownership of the copyright vests in the surveyor.

Ownership of a copyright allows the surveyor, sole proprietor, or company, to dispose of this intangible personal property by applicable laws of conveyance and intestate succession.

² 17 U. S. C. A. § 102(a} "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed. 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: (1} literary works: (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; ((4) pantomimes and choreographic works; (S} pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings."
3 U. v. U. Art. 1 section 8 grants and limits Congressional power to "Promote the Progress of Science and useful Arts, by securing for limited Times to Authors sod inventors the exclusive Right to their respective Writings and Discoveries ."

⁴ 17 U. S. C. A. § 102(a) (1) Literary work is defined as: "Works other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts phonorecords, film tapes, disks or cards in which they are embodied."

⁵ 17 U. S. C. A. § 103(a) "The subject matter of copyright as specified by section 102 includes compilations sod derivative works but protection for awork employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

⁶ 17 U. S. C. A. § 103(b): "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work , as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the existing material. The copyright in such work is independent of, and does not affect or enlarge the scope duration ownership or subsistence of any copyright protection in the preexisting material."

⁷ 17 U. S. C. A. 102(b) codified the ides/expression merger doctrine where in some cases it is so difficult to distinguish between an idea and its expression that the two are said to merge expressed in Baker v. Selden, 347 U S. at _ , 74 S. CT. at 470.

⁸ 769 8 F.2d 145, 148, 226 U. S P. Q. 1025 (7th Cir. 1985). (Plat map showing location, size, and ownership of parcels of land was copyrightable.)

⁹ Feist Publications v. Rural Telephone 499 U. S 340 115. Ct. 1282 (1991).

¹⁰ 17 U. 5. C. A. § 201(a)) "Initial ownership. Copyright in a work protected under this title vests initially in the authors of the work. The authors of a joint work are co-owners of copyright in the work."

¹¹ 17 U. 5. C. A. § 201(b) "In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for the purposes of this title, and, unless the* parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."

¹² 17 U 5. C. A. §101. ~'A work made for hire'is­(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

¹³ The factors set out in CCNV are: "(1) hiring party's right to control the manner and means by which the product is accomplished (2) skill required: (3) the source of the instrumentalities end tools; (4) the location of the work: (5) the duration and relationship between the parties; (6) whether the hiring party has a right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants: (10) whether the work is part of the regular business of the hiring party: (11) whether the hiring party is in business; (12) the provision of employee benefits; (13) the tax treatment of the hired party."

¹⁴A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole (CCNV, 490 U.S. 730 ( (1989)).

¹⁵17 U. S. C A. § 101(2) "A work made for hire is­a work specially ordered or commissioned...... as a compilation."

¹⁶17 U. S. C. A. § 201 (d)) (1) "The ownership of a copyright may be transferred in whole or in part by means of conveyance or by operation of law, and may be bequeathed by wilt or pass as personal property by the applicable laws of interstate succession."

¹⁷17 U. S. C. A. § 201(a): "...The authors of a joint work are co-owners ..." "
¹⁸H. R. Rep. No. 94-1476, 94th Cong., 2d Sess. 121 (1976).