That said, I’m pretty sure that a parody very similar to Kinkade’s style would win a fair use battle…but the parodist may have to endure some absurd trial on issues like the likely effect of the parody on the market for licenses for non-parodic copies (see, e.g., Campbell v. Acuff Rose.)

http://madisonian.net/2008/10/19/who-owns-your-neighborhood/

I liked the characterization of map locations as databases because, in the US, there is no statutory database right. But of course in Europe things are different; see, e.g.,

http://osdir.com/ml/dmca-activists/2004-11/msg00017.html

And in the US contractual provisions could lead to similar levels of protection, though Posner’s Wiredata decision suggests that courts will not allow DMCA provisions to penalize the circumvention of technological protections for such data.

Maps are fascinating because they present issues with relation to images that the abstraction/filtration/comparison test in Nichols (the Abie’s Irish Rose case) present in the case of text. In that case, the court was unwilling to let an author copyright plotlines/stock characters at too high a level of abstraction. Similarly, while a picture of a land plot could be copyrighted, you can’t copyright the representation of locations on it on a map.

The hard questions then arise with respect to copyright of selections/compilations. For example, while I can’t copyright a whole anthology of public domain poems, I can copyright my particular selection and arrangement of them. By the same token, a mapmaker may argue that his picks of places to represent is as creative as the anthology editor’s choice of poems. And a lot will hang (I think) on the degree of originality involved. For example, if one anthologizes all the poems that are already in Norton, plus a few more, I can’t see much of a copyright claim there-they’re the obvious choices. So too with mapping the best-known landmarks of a plot.

But isolating “hidden gems” of poetry may be worth some protection. So too might a map of the “best hidden places to eat.” The Maponics case mentioned above suggests the degree to which a map may well be making the places it claims to be mapping…for instance, think of entrepreneurial brokers’ declaring a new hot area of new york “noho” or “eho” to the north and east of SoHo. It’s “at once a description and a judgment,” or “fact and opinion,” or “fact and expression,” to mention a group of fact/value binaries I love to question (see, e.g.,

http://www.concurringopinions.com/archives/2006/11/in_memoriam_cli.html

But on the other end, how can you really expect him not to sound like himself anymore?

Anyway, there was a supreme court case on this, although that was on collateral issues (attorneys fees, if memory serves). But that would be a good place to start for the notion of copyrighting style.

I would add that I think in general this whole thing is too restrictive of speech, and thus shouldn’t be allowed.

As for the fictitious place “copyright traps theory, what is copying a map “in toto”? If B unwittingly includes one fictitious street from A’s map, but otherwise with different expression, is that substaintial enough for infringement? (And does it matter if the source of the error was Company A, acting intentionally, or Company A’s reliance on an erroneous county survey?) Is there caselaw on “copyright traps” in maps, or is it merely a practice followed by copyright owners who think they’re clever? Is this another instance where we’re brainwashed by copyright owners into thinking that their assertions of copyright do state the law?

BTW before one thinks this merely reduces to a database issue, one should keep in mind that there are places, such as L.A., Bay Area and Tokyo, where people do use paper-based maps quite a bit. But as for the database protection angle, Frank, do you like this because it strengthens a map owner’s ability to sue others for infringement, or what?

http://madisonian.net/2006/06/25/ranking-vs-mapping-knowledge/

“American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.”

By the way, I think Kinkade’s “N”’s may have been used by Hirschfeld (as a tribute to his daughter Nina)…so even his trademark signal of originality may be hackneyed!

That especially makes me wonder whether a map nowadays (i.e. an automatically created picture with map features on it) should be protected as a database instead of as a creative work. Might be right from the dogmatic viewpoint, and also has some different practical consequences.

Openstreetmap has serious copyright problems with maps – is it allowed to check a self-surveyed map against one based on Mapquest data to see what streets are missing and then resurvey on location?