Darden v. Peters ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM DARDEN, 
Plaintiff-Appellant,
v.
 No. 06-1177
MARYBETH PETERS, Register of
Copyrights,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(2:04-cv-00030-BO)
Argued: February 1, 2007
Decided: May 24, 2007
Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Widener and Judge Duncan joined.
COUNSEL
ARGUED: Anthony J. Biller, COATS & BENNETT, P.L.L.C., Cary,
North Carolina, for Appellant. John J. Fargo, Director, Intellectual
Property Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: David
E. Bennett, COATS & BENNETT, P.L.L.C., Cary, North Carolina,
for Appellant. David Carson, General Counsel, Tanya Sandros, Asso-
2 DARDEN v. PETERS
ciate General Counsel, A. Renee Coe, Senior Attorney, UNITED
STATES COPYRIGHT OFFICE, Washington, D.C.; Peter D. Keis-
ler, Assistant Attorney General, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
OPINION
TRAXLER, Circuit Judge:
William Darden filed this action under the Administrative Proce-
dure Act against Marybeth Peters, Register of Copyrights, seeking to
set aside a decision of the United States Copyright Office denying
Darden’s applications for copyright registration. See 5 U.S.C.
§ 706(2)(A); 17 U.S.C. § 701(e). Finding no abuse of discretion in the
Register’s refusal to issue a copyright registration for Darden’s works,
we affirm the district court’s grant of summary judgment to the Reg-
ister.
I.
Darden created a website called "appraisers.com," an online refer-
ral service for consumers to locate real estate appraisers throughout
the United States. The website features a series of maps that enable
a user to find an appraiser in a desired location by pointing to and
clicking on the appropriate map. The homepage of appraisers.com
features a stylized map of the United States that serves as a link to
a separate page displaying a detailed map of any state selected by the
user. The state maps, in turn, are divided into counties; the consumer
can retrieve a list of local appraisers by selecting the appropriate
county.
In developing his website, Darden hired Sean Pecor, a web
designer, to create the maps. Pecor started with a digital Census map
of the United States, colored the map blue, and added shading to give
the map a three-dimensional effect. Pecor selected a font to use in
labeling the states, and he added call-out labels as well. Pecor used
the same process for the individual maps of each state. After complet-
ing the project, Pecor assigned Darden any copyright interest he held
in the maps and the design of the website.
DARDEN v. PETERS 3
In May 2002, Darden filed an application with the Copyright
Office seeking to register his website, which he titled "APPRAISERS
dotCOM" for purposes of the application, as a technical drawing.
Darden described APPRAISERSdotCOM as a derivative work based
on "US Census black and white outline maps" and "clip art." J.A. 125.
Darden’s application identified "graphics, text, colors, and arrange-
ment" as the material that he added to the preexisting work and in
which he claimed copyright protection. J.A. 125. Additionally, Dar-
den filed a separate application for registration of the work "Maps for
APPRAISERSdotCOM." J.A. 286. Darden described his "Maps"
work as a derivative work that, similar to the "APPRAISERSdot
COM" work, was based on preexisting "US Census black and white
outline maps." J.A. 287. He claimed copyright ownership in the addi-
tions made by Pecor to the preexisting census maps: "font and color
selection; visual effects such as relief, shadowing, and shading; label-
ing; call-outs." J.A. 287.
The Examining Division of the Copyright Office rejected both
applications. With respect to Darden’s claim in the Maps themselves,
the examiner concluded that the work "lack[ed] the authorship neces-
sary to support a copyright claim." J.A. 119. The examiner explained
that "[i]n order to be copyrightable, a work of the visual arts must
contain a minimum amount of pictorial, graphic, or sculptural author-
ship" and that "[c]opyright does not protect familiar shapes, symbols,
and designs . . . [or] mere variations of typographic ornamentation,
lettering, fonts, or coloring." J.A. 119. The labeling, relief, shadowing
and shading that Darden contributed to the preexisting maps, the
examiner concluded, are standard elements that do not contain copy-
rightable authorship.
As for Darden’s application to register his APPRAISERSdotCOM
web pages as a technical drawing, the examiner first noted that the
work "does not appear to contain any technical drawing." J.A. 120.
Regarding Darden’s claim for "graphics," the examiner determined
that "[a]ll of the graphic elements appear to consist only of the preex-
isting outline maps and some simple colored rectangles" and thus the
added material was not sufficiently original to warrant copyright pro-
tection. J.A. 120. Darden’s variations in color were rejected on the
same basis. The examiner observed, however, that "[t]he work con-
tains text and perhaps a compilation which can support a copyright
4 DARDEN v. PETERS
claim, if they are original" and indicated that Darden could pursue
registration of an original compilation by filing a new or amended
application that "omitt[ed] any reference to ‘technical drawing,’
‘graphics,’ or ‘colors.’" J.A. 120.
Darden sought reconsideration by the Examining Division of the
Copyright Office. With respect to his application for registration of
the Maps work, Darden argued that the maps had a sufficient level of
creativity to warrant copyright protection because of "the special
combination of font and color selection; visual effects such as relief,
shadowing, and shading; labeling; and call-outs. The information the
maps convey could easily be provided in other ways; thus, the author
should be allowed to protect his creative efforts." J.A. 100. In support
of his request for reconsideration, Darden submitted a written "decla-
ration" from Sean Pecor who asserted that, even though he used pre-
existing census maps as the basis of his work, "each map was altered
to such a degree that each line on each map is measurably changed
from the digital originals . . . obtained from the US Census." J.A. 116.
Specifically, Pecor "resized the maps and redrew many of the anti-
aliased lines" so that "during scale down of [the maps], [the images
would not] get a ‘chunky’ look." J.A. 116.1 Pecor claims he also "cre-
ated a three-dimensional effect by repeating each outline several
times — one bright blue outline slightly askew, one darker outline
slightly askew, etc." J.A. 116.
Darden submitted an amended application for registration of the
APPRAISERSdotCOM work. The revised application indicated that
the nature of authorship was a "compilation and arrangement of maps,
text, graphics, and data" as opposed to a technical drawing as indi-
cated in the original application. J.A. 107. Darden described the new
material in which he claimed copyright as "[t]ext; map designs and
formats; compilation, formating, and arrangement of text, maps,
graphics, and listing data." J.A. 108. Darden made clear that he was
asserting no claim in "the content of the listing data." J.A. 108.
The Examining Division denied Darden’s request for reconsidera-
1
According to Pecor, "[a]n anti-aliased line is a line digitally softened
by a graphic program to render a line more smoothly." J.A. 116.
DARDEN v. PETERS 5
tion and registration of his copyright claims. The examining attorney
explained that
[i]n the case of a derivative work, copyright protection cov-
ers only the additions or changes appearing in the work for
the first time . . . mean[ing] that the new material must con-
tain a sufficient amount of original and creative authorship
to be copyrightable. Copyright does not extend to any preex-
isting or previously registered material. . . . [W]here the new
material consists solely of the uncopyrightable elements
such as a change of layout, format, size, spacing or coloring,
registration is not possible.
J.A. 94. The examiner concluded that the changes made to Darden’s
maps work "amount[ed] primarily to layout and format as well as de
minimis compilation" and therefore lacked "a sufficient amount of
originality and creativity to support a copyright registration." J.A. 97-
98. With respect to the APPRAISERSdotCOM work, the examiner
again suggested the possibility of a registrable claim "in only the ‘text
and compilation of data’" but indicated that a new application, revised
to limit the claim to "‘text and compilation of data,’" was required.
J.A. 98.
Darden then sought review of the denial of his applications by the
Copyright Office Board of Appeals. Darden’s argument was essen-
tially identical to that asserted in his request for reconsideration:
Mr. Darden is not seeking a copyright on one particular
design element of the maps in question, nor is he asking for
protection of "simple combinations" of elements such as "fa-
miliar shapes, symbols, and designs; mere variations of
typographic ornamentation, lettering, fonts or coloring." Mr.
Darden requests protection for the overall pictorial expres-
sions of his maps.
Mr. Darden’s overall design, his special combination of
font and color selection, selection and arrangement of geo-
graphic locations such as counties, visual effects such as
relief, shadowing, and shading, labeling, and call-outs pro-
6 DARDEN v. PETERS
vide the "creative spark" that make[s] the maps original and
eligible for protection.
J.A. 87. Darden also presented his own declaration in which he stated
that he had "received calls from people and companies asking
whether I would license our maps for them to use on their web sites
. . . [demonstrating that] people recognize the maps as being unique
and proprietary to us." J.A. 92.
The Board of Appeals again affirmed the denial of registration for
both the Maps and the APPRAISERSdotCOM works. With regard to
the copyright claim in the maps themselves, the Board concluded, as
did the Examining Division, that the maps were merely "representa-
tions of the preexisting census maps in which the creative spark is
utterly lacking or so trivial as to be virtually nonexistent." J.A. 74
(internal quotation marks omitted). The Board also noted that any
marketplace confusion created by the use of Darden’s maps by third
parties was irrelevant to the question of whether the maps were copy-
rightable, as were requests to Darden by website browsers for license
to use the maps. As for the APPRAISERSdotCOM application, the
Board of Appeals affirmed the denial of registration "due to the
expansive scope of the claim." J.A. 76. Although the Board of
Appeals endorsed the notion that there could well be copyrightable
elements included on the website, Darden’s claim as stated in his reg-
istration application — for "text, maps, and formatting of an Internet
web page" — was simply "too broad" to warrant protection. J.A. 76.
Darden then brought this action against the Register of Copyrights
under the Administrative Procedure Act ("APA"), see 5 U.S.C.
§§ 701-706, seeking judicial review of the decision of the Copyright
Office refusing to register his copyright claim. Rejecting Darden’s
argument that the decision of the Copyright Office is subject to a de
novo standard of review, the district court concluded that the Copy-
right Office did not abuse its discretion in refusing registration, see
5 U.S.C. § 706(2)(A), and granted the Register’s motion for summary
judgment.
DARDEN v. PETERS 7
II.
The Copyright Act provides that "all actions taken by the Register
of Copyrights under this title are subject to the provisions of the
Administrative Procedure Act." 17 U.S.C. § 701(e).2 One routine
function of the Register is to examine applications for registration to
determine if "the material deposited constitutes copyrightable subject
matter and . . . the other legal and formal requirements of [the Copy-
right Act] have been met." 17 U.S.C. § 410(a). If so, then the Register
must issue a certificate of registration to the applicant, see 17 U.S.C.
§ 410(a); if, however, the Register determines that "the material
deposited does not constitute copyrightable subject matter or that the
claim is invalid for any other reason," then the Register must refuse
registration and notify the applicant of the reasons for refusal, 17
U.S.C. § 410(b). Because the Register’s denial of a copyright registra-
tion application is, by the statute’s plain terms, an action taken by the
Register under the Copyright Act, the APA governs judicial review.
See 17 U.S.C. § 701(e); Atari Games Corp. v. Oman, 888 F.2d 878,
879 & n.1 (D.C. Cir. 1989) ("Atari I"); Nova Stylings, Inc. v. Ladd,
695 F.2d 1179, 1182 (9th Cir. 1983).
The district court concluded that the proper standard of review
under the APA is the familiar "abuse of discretion" standard whereby
a reviewing court will "set aside agency action, findings, and conclu-
sions" that are "arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law." 5 U.S.C. § 706(2)(A). This is
consistent with the few federal decisions — most of which were
issued by the same court — addressing the proper review standard
under the APA for courts directly reviewing a registration decision.
See Atari Games Corp. v. Oman, 979 F.2d 242, 243 (D.C. Cir. 1992)
("Atari II"); OddzOn Prods., Inc. v. Oman, 924 F.2d 346, 347-48
(D.C. Cir. 1991); Atari I, 888 F.2d at 881; Coach, Inc. v. Peters, 386
F. Supp. 2d 495, 497 (S.D.N.Y. 2005). See generally 3 Melville B.
2
The Copyright Act excepts the Register’s performance of a single
function from APA review: authorization of, or refusal to authorize, cop-
ies or reproductions of "deposited articles retained under the control of
the Copyright Office." 17 U.S.C. § 706(b); see 17 U.S.C. § 701(e). This
narrow exception is not at issue here.
8 DARDEN v. PETERS
Nimmer & David Nimmer, Nimmer on Copyright § 12.11[B][3], at
12-208 (2005).
Darden does not contest the general applicability of the APA to his
claim; indeed, he expressly brought this action under the APA. Dar-
den contends, however, that the district court incorrectly applied the
abuse of discretion standard set forth in section 706(2)(A) of the
APA. Darden suggests instead that section 706(2)(B) applies to a
challenge of the Register’s denial of a copyright registration applica-
tion and mandates a de novo standard of review. Section 706(2)(B)
directs that the reviewing court set aside agency actions the court
finds to be "contrary to constitutional right, power, privilege, or
immunity." 5 U.S.C. § 706(2)(B). Under the APA, constitutional
questions that arise during APA review fall expressly within the
domain of the courts. See 5 U.S.C. § 706 (requiring that "[t]o the
extent necessary to decision and when presented, the reviewing court
shall . . . interpret constitutional and statutory provisions") (emphasis
added). Thus, judicial review of a claim that the agency’s actions vio-
lated a claimant’s constitutional rights is conducted de novo. See
Western Energy Co. v. United States Dep’t of Interior, 932 F.2d 807,
809 (9th Cir. 1991).
Darden cites no authority even remotely suggesting that any court
has ever regarded the agency’s routine decision to deny registration
as having constitutional ramifications for the claimant. Darden
derives the basis for his argument from Article I of the United States
Constitution which grants Congress the power to provide copyright
protection to the extent Congress sees fit. See U.S. Const. Art. I, § 8,
cl. 8 (granting Congress legislative power "[t]o promote the Progress
of Science and useful Arts, by securing . . . to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries").
Congress is under no mandate from this clause, however, to provide
copyright protection. See Silvers v. Sony Pictures Entertainment, Inc.,
402 F.3d 881, 883 (9th Cir. 2005) ("As is clear from its text, that
clause of the Constitution grants no substantive protections to authors.
Rather, Congress is empowered to provide copyright protection.").
Copyright is solely a creature of statute; whatever rights and remedies
exist do so only because Congress provided them. See Sony Corp. of
Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). Thus,
as there is no constitutional right to copyright registration, the Regis-
DARDEN v. PETERS 9
ter’s refusal to register Darden’s claim cannot be "contrary to consti-
tutional right" as it must be for section 706(2)(B) to apply.
Darden next contends that because the Register’s decision was
based on the agency’s incorrect resolution of a legal question, i.e.,
whether Darden’s claim lacked sufficient originality to be registrable,
the Register’s decision is subject to de novo review. More particu-
larly, Darden argues that the Register’s refusal to find sufficient origi-
nality in his submitted works despite the "extremely low" amount of
creativity required for a work to be copyrightable, Feist Publications,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991), was an errone-
ous conclusion that must be set aside under the "not in accordance
with law" provision of section 706(2)(A) of the APA. Additionally,
Darden cites various decisions noting, in the context of copyright
infringement litigation, "that copyrightability is always an issue of
law" for the court. Gaiman v. McFarlane, 360 F.3d 644, 648 (7th Cir.
2004); see Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d
25, 34 n.5 (1st Cir. 2001); Collezione Europa U.S.A. v. Hillsdale
House, 243 F. Supp. 2d 444, 452 (M.D.N.C. 2003).
We reject Darden’s argument. Essentially, Darden is claiming that
the Register simply reached the wrong result, not that the Register
applied the wrong legal standard or misapprehended or ignored the
controlling legal principles. See Turgeau v. Administrative Review
Bd., 446 F.3d 1052, 1057 (10th Cir. 2006) (explaining that under
§ 706(2)(A) "[f]ailure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal
principles have been followed is grounds for reversal") (internal quo-
tation marks omitted). Review under section 706(2)(A) is "narrow"
and the reviewing court is not permitted to substitute its own judg-
ment for the judgment of the agency. Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, the
court is to determine "whether the decision was based on a consider-
ation of the relevant factors," West Virginia v. Thompson, 475 F.3d
204, 212 (4th Cir. 2007) (quoting Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1971)), or whether "the agency has
relied on factors which Congress has not intended it to consider, [or]
entirely failed to consider an important aspect of the problem," Motor
Vehicle Mfrs., 463 U.S. at 43; see Thompson, 475 F.3d at 212.
10 DARDEN v. PETERS
Darden makes no assertion of this kind here; he merely argues that
the agency should have concluded that the Maps and APPRAISERS
dotCOM works contained the requisite level of creativity, citing Feist
and other precedents. At every level of internal agency review, how-
ever, the Copyright Office recognized Feist as having established the
contours of the originality element of a copyright claim. Because Dar-
den has failed to identify any relevant factor or legal principle that the
Register failed to consider, the agency’s decision cannot be set aside
as "contrary to law."
Finally, Darden argues that the Register’s determination that a
copyright claim lacked sufficient originality to warrant registration is
subject to de novo review in the context of an infringement action
under section 411(a) of the Copyright Act. He contends that de novo
review of the copyrightability issue should also apply in the context
of APA review for the sake of efficiency and predictability. We can-
not agree.
Congress has afforded disappointed copyright applicants two sepa-
rate methods of seeking redress for the decision of the Copyright
Office not to register a copyright claim. First, as we explained previ-
ously, the applicant may file a review action under the APA against
the Register of Copyrights for the sole purpose of having the denial
of registration set aside. See 17 U.S.C. §§ 410(a), 701(e). Darden’s
action, of course, is such a case. Second, the claimant may seek judi-
cial review of the rejected registration as part of an infringement
action against an alleged infringer under section 411(a) of the Copy-
right Act.3
Both kinds of actions involve, to one degree or another, consider-
ation of whether a copyrightable claim has been presented. The Reg-
ister has a statutory duty to examine applications for registration to
3
Registration is a prerequisite for a copyright infringement action. See
17 U.S.C. § 411(a). However, if "the deposit, application, and fee
required for registration have been delivered to the Copyright Office in
proper form and registration has been refused, the applicant is entitled to
institute an action for infringement if notice . . . is served on the Register
of Copyrights" who "may, at his or her option, become a party to the
action with respect to . . . registrability of the copyright claim." Id.
DARDEN v. PETERS 11
determine if "the material deposited constitutes copyrightable subject
matter and . . . the other legal and formal requirements of [the Copy-
right Act] have been met." 17 U.S.C. § 410(a). Whether the Register
issues the certificate of registration or not, the Register necessarily
makes a determination about the validity of the copyright claim. And,
with respect to a copyright infringement action, the plaintiff must
establish "ownership of a valid copyright and copying of constituent
elements of the work that are copyrightable." Compaq Computer
Corp. v. Ergonome Inc., 387 F.3d 404, 407 (5th Cir. 2004) (internal
quotation marks omitted). Copyright ownership, in turn, requires
"proof of originality and copyrightability." Id. at 408; see Fiest, 499
U.S. at 361.
Darden’s argument notwithstanding, it is not a foregone conclusion
that courts owe no deference whatsoever to the Register’s decision in
the context of an infringement action under section 411(a). Indeed,
courts are split on this issue. Compare John Muller & Co. v. New
York Arrows Soccer Team, 802 F.2d 989, 990 (8th Cir. 1986) (apply-
ing abuse of discretion standard to infringement claim); Norris Indus.
v. IT&T Corp., 696 F.2d 918, 922 (11th Cir. 1983) (same), with Carol
Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir.
1985) (according no deference to Register’s copyrightability conclu-
sion); OddzOn Prods., 924 F.2d at 347-50 (same). We need not weigh
in on this issue, however, as Darden brought this action against the
Register under the APA seeking review of the denial of registration
for insufficient originality in his works. Even if no deference is due
to the Register’s decision by courts adjudicating infringement actions
under section 411(a), we must apply the standards set forth in the
APA. To do otherwise would be to ignore the clear and unambiguous
language of the statute, which we cannot do. Accordingly, we review
the decision to register Darden’s works for abuse of discretion.
III.
Darden next contends that even if the Register’s decision is
reviewed under a discretionary standard, it must be set aside because
his Maps and APPRAISERSdotCOM works met the minimum stan-
dard of originality required for a copyrightable claim. Again, we dis-
agree.
12 DARDEN v. PETERS
The Copyright Act affords copyright protection for "original works
of authorship fixed in any tangible medium of expression," including
"pictoral, graphic, and sculptural works." 17 U.S.C. § 102(a)(5). A
work must be original to be copyrightable; indeed, the "sine qua non
of copyright is originality." Feist, 499 U.S. at 345. To be "original,"
the work in question must have been "independently created by the
author (as opposed to copied from other works)," and it must "pos-
sess[ ] at least some minimal degree of creativity." Id. The threshold
level of creativity required for copyrightability is low such that the
"vast majority of works make the grade quite easily, as they possess
some creative spark." Id. Nevertheless, "[t]here remains a narrow cat-
egory of works in which the creative spark is utterly lacking or so
trivial as to be virtually nonexistent." Id. at 359. The Copyright Office
established a regulation providing examples of the types of works that
fall into the category of works that lack a minimum level of creativity
and do not qualify for copyright protection, including "[w]ords and
short phrases such as names, titles, and slogans; familiar symbols or
designs; mere variations of typographic ornamentation, lettering or
coloring; mere listing of ingredients or contents." 37 C.F.R.
§ 202.1(a).
The originality requirement applies to derivative works as well. See
17 U.S.C. § 101 (defining derivative work as a work "based upon one
or more preexisting works"). The author’s copyright protection in a
"derivative work only extends to the elements that he has added to the
work." Dam Things from Denmark v. Russ Berrie & Co., 290 F.3d
548, 563 (3d Cir. 2002). And, the author’s contributions must satisfy
the originality requirement. See Feist, 499 U.S. at 359.
A.
We first consider the refusal of the Copyright Office to register
Darden’s Maps work. In each of the three letters denying registration,
the Copyright Office explained that the changes and additions Darden
made to the standard census maps in his Maps work claim were
uncopyrightable elements that were insufficiently original or creative
to be copyrightable. See Satava v. Lowry, 323 F.3d 805, 812 n.5 (9th
Cir. 2003) (noting that "expressions that are standard, stock, or com-
mon to a particular subject matter or medium are not protectable
under copyright law"). Additions to the preexisting maps such as
DARDEN v. PETERS 13
color, shading, and labels using standard fonts and shapes fall within
the narrow category of works that lack even a minimum level of cre-
ativity; indeed, Darden’s contributions to the preexisting maps resem-
ble the list of examples of uncopyrightable works set forth in 37
C.F.R. § 202.1(a).
Darden points out that courts have recognized that maps have
"have an inherent pictorial or photographic nature that merits copy-
right protection." Mason v. Montgomery Data, Inc., 967 F.2d 135,
142 (5th Cir. 1992); see Streetwise Maps, Inc. v. Vandam, Inc., 159
F.3d 739 (2d Cir. 1998). The general proposition that maps are cate-
gorically eligible for copyright registration, however, does not estab-
lish that the maps at issue here are copyrightable.4
Darden also argues that the Copyright Office abused its discretion
by failing to credit evidence showing that real estate appraisers, other
real estate companies, and Darden’s customers associate these partic-
ular maps with Darden’s company. For example, Darden has "re-
ceived phone calls from people and companies asking whether [he]
would license [the] maps for them to use." J.A. 92. And, Darden’s
customers have reported confusion after encountering a competitor’s
website that had downloaded Darden’s maps. Recognizing the maps,
the customers believed that Darden operated the competitor’s website.
Darden asserts that this evidence of association demonstrates that the
maps were unique, creative and original.
We disagree. Source identification is the hallmark of trademark
law, not copyright. See Two Pesos, Inc. v. Taco Cabana, Inc., 505
U.S. 763, 768-69 (1992). Furthermore, a work is copyrightable at the
time of its creation or not at all. Evidence that customers associated
4
The decisions Darden relies upon do not assist him. For instance,
Streetwise Maps discusses the pictorial elements used, such as color, in
the context of an infringement claim — not an examination of copy-
rightability for purposes of registration. See Streetwise Maps, 159 F.3d
at 746-48. Mason, unlike this case, involved the addition of more than
simple colors and labels to a preexisting map. Mason, for example,
depicted "the location, size, and shape of surveys, land grants, tracts, and
various topographical features" on a county map produced by the United
States Geological Survey." Mason, 967 F.2d at 136.
14 DARDEN v. PETERS
the work with Darden is an indication of commercial success over
time, not originality. See Paul Morelli Design, Inc. v. Tiffany & Co.,
200 F. Supp. 2d 482, 487-89 (E.D. Pa. 2002).
We conclude that the Register properly refused to register Darden’s
Maps work. Because there was no abuse of discretion, we decline to
set aside the decision of the Copyright Office.
B.
With respect to the APPRAISERSdotCOM work, Darden argues
that the Register should have granted his application to copyright his
website as a compilation. The Copyright Act defines a compilation as
a "work formed by the collection and assembling of preexisting mate-
rials 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. § 101. Feist instructs that, where a copy-
right is sought in a compilation, "the principal focus should be on
whether the selection, coordination, and arrangement are sufficiently
original to merit protection." 499 U.S. at 358.
Darden’s revised application indicated that he was claiming protec-
tion in the website’s "text; map designs and formats; compilation, for-
matting, and arrangement of text, maps, graphics, and listing data."
J.A. 108. In rejecting Darden’s claim, the Copyright Office noted that
a website may well contain copyrightable elements, but its formatting
and layout is not registrable. Compilation authorship is limited to the
original selection, coordination and arrangement of the elements or
data contained within a work. See Satava, 323 F.3d at 812.
We conclude that the Copyright Office acted well within its discre-
tion in concluding that Darden failed to present a copyrightable com-
pilation.
IV.
For the foregoing reasons, we conclude that the Copyright Office
did not abuse its discretion in rejecting Darden’s application for regis-
tration of his Maps and APPRAISERSdotCOM works. Accordingly,
DARDEN v. PETERS 15
we affirm the order of the district court granting the Register’s motion
for summary judgment and denying Darden’s cross-motion for sum-
mary judgment.
AFFIRMED