Darden v. Peters

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