6 ms·

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 min

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.

nck4222 7y ago
Also pointed out in the article, the "copy cat" map was made 2 years before the official MTA map that it's so similar to.
- niklasrde 7y ago
  No, it was made in 1972. In 2011 it was just brought back, but it had been published before.
logfromblammo 7y ago
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.
- Lammy 7y ago
  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 https://en.wikipedia.org/wiki/Trap_street
  - bonyt 7y ago
    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. https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R.... https://en.wikisource.org/wiki/Feist_Publications_v._Rural_Telephone_Service/Opinion_of_the_Court https://en.wikisource.org/wiki/Feist_Publications_v._Rural_T... https://en.wikipedia.org/wiki/Fictitious_entry https://en.wikipedia.org/wiki/Fictitious_entry
  - nybble41 7y ago
    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.
- jahewson 7y ago
  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.
  - deleted 7y ago
    [deleted]
  - logfromblammo 7y ago
icebraining 7y ago
How does that kill their case? They just seems to be claiming his is a derivative work of the original map.
- JangoSteve 7y ago
  Derivative works are protected by Fair Use.
  - wtracy 7y ago
    Not at all. "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work." https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf
    - JangoSteve 7y ago
      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]. EDIT: [1] https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html [2] https://foundrylawgroup.com/copyright-copywrong-what-are-derivative-and-transformative-works/ https://foundrylawgroup.com/copyright-copywrong-what-are-der...
    - JangoSteve 7y ago
      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.
JangoSteve 7y ago
I thought you were going to point out this line: > 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.
- geoelectric 7y ago
  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.
  - JangoSteve 7y ago
    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.

nck4222 7y ago

Also pointed out in the article, the "copy cat" map was made 2 years before the official MTA map that it's so similar to.

niklasrde 7y ago
No, it was made in 1972. In 2011 it was just brought back, but it had been published before.

logfromblammo 7y ago

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.

Lammy 7y ago
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 https://en.wikipedia.org/wiki/Trap_street
- bonyt 7y ago
  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. https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R.... https://en.wikisource.org/wiki/Feist_Publications_v._Rural_Telephone_Service/Opinion_of_the_Court https://en.wikisource.org/wiki/Feist_Publications_v._Rural_T... https://en.wikipedia.org/wiki/Fictitious_entry https://en.wikipedia.org/wiki/Fictitious_entry
- nybble41 7y ago
  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.
jahewson 7y ago
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.
- deleted 7y ago
  [deleted]
- logfromblammo 7y ago

icebraining 7y ago

How does that kill their case? They just seems to be claiming his is a derivative work of the original map.

JangoSteve 7y ago
Derivative works are protected by Fair Use.
- wtracy 7y ago
  Not at all. "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work." https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf
  - JangoSteve 7y ago
    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]. EDIT: [1] https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html [2] https://foundrylawgroup.com/copyright-copywrong-what-are-derivative-and-transformative-works/ https://foundrylawgroup.com/copyright-copywrong-what-are-der...
  - JangoSteve 7y ago
    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.

JangoSteve 7y ago

I thought you were going to point out this line: > 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.

geoelectric 7y ago
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.
- JangoSteve 7y ago
  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.