HODGE E. MASON and HODGE MASON MAPS, INC., 
            Plaintiffs-Appellants, v. MONTGOMERY DATA, INC., ET AL., 
                             Defendants-Appellees.

                                  No. 91-2305.

              UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT


              967 F.2d 135; 1992 U.S. App. LEXIS 17321; 23 U.S.P.Q.2D
                    (BNA) 1676; Copy. L. Rep. (CCH) P26,959

                             July 28, 1992, Decided

REAVLEY, Circuit Judge:

   Hodge E. Mason, Hodge Mason Maps, Inc., and Hodge Mason Engineers, Inc.
(collectively Mason) sued Montgomery Data, Inc. (MDI), Landata, Inc. of Houston
(Landata), and Conroe Title & Abstract Co. (Conroe Title), claiming that the
defendants infringed Mason's copyrights on 233 real estate ownership maps of
Montgomery County, Texas. The district court initially held that Mason cannot
recover statutory damages or attorney's fees for any infringement of 232 of the
copyrights. The court later held that Mason's maps are not copyrightable under
the ideaexpression merger doctrine, and granted summary judgment for the
defendants. We agree with Mason that the maps are copyrightable, so we reverse
the district court's judgment and remand the case. But we agree with the
district court that, if Mason proves that the defendants infringed his
copyrights, n2 he can only recover statutory damages and attorney's fees for the
infringements of one of the 233 [**2]  maps.

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   n2 In addition to arguing that Mason's maps are not copyrightable, the
defendants argued in their motions for summary judgment that their actions did
not constitute actionable infringement of those copyrights. Although the
district court did not address these arguments when it granted summary judgment,
Landata asks us to affirm the summary judgment in the defendants' favor on these
grounds. We decline this invitation, and remand the case for the district court
to address these issues.

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I. BACKGROUND

   Between August 1967 and July 1969, Mason created and published 118 real
estate ownership maps that, together, cover all of Montgomery County. The maps,
which display copyright notices, pictorially portray the location, size, and
shape of surveys, land grants, tracts, and various topographical features within
the county. Numbers and words on the maps identify deeds, abstract numbers,
acreage, and the owners of the various tracts. Mason obtained the information
that he included on the maps from a variety of sources.  [**3]  n3 Relying on
these sources, Mason initially determined the location and dimensions of each
survey in the county, and then drew the corners and lines of the surveys onto
topographical maps of the county that were published by the United States
Geological Survey (USGS). n4 He then determined the location of the property
lines of the real estate tracts within each survey and drew them on the USGS
maps. Finally, Mason traced the survey and tract lines onto transparent
overlays, enlarged clean USGS maps and the overlays, added names and other
information to the overlays, and combined the maps and overlays to print the
final maps. Mason testified that he used substantial judgment and discretion to
reconcile  [*137]  inconsistencies among the various sources, to select which
features to include in the final map sheets, and to portray the information in a
manner that would be useful to the public. From 1970 to 1980, Mason revised the
original maps and eventually published 115 new maps with copyright notices, for
a total of 233 maps. Mason sold copies of his maps individually and in sets.

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   n3 These sources included tax, deed, and survey records from Montgomery
County; data provided by the San Jacinto River Authority; survey records, maps,
and abstracts of land titles from the Texas General Land Office; title data and
subdivision information provided by Conroe Title; a map from the City of Conroe,
Texas; and maps from the United States Coast and Geodetic Survey.  [**4]



   n4 The USGS has mapped much of the United States, including Montgomery
County. Most private mapmakers, like Mason, use USGS topographical maps as
starting points for their own maps. See David B. Wolf, Is There any Copyright 
Protection for Maps after Feist?, 39 J. Copyright Soc'y USA 224, 226 (1992).

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   Mason's infringement claims are based on the defendants' use of his maps as
part of a geographical indexing system that Landata created to continuously
organize and store ever-changing title information on each tract in Montgomery
County. To create this sytem, Landata purchased a set of Mason's maps and
reorganized them by cutting and pasting them into 72 map sheets. Landata then
attached a transparent overlay to each of the 72 sheets, and depicted on these
overlays numerous updates and corrections to the information on Mason's maps.
Landata arbitrarily assigned identification numbers ("arb numbers") to tracts or
areas within the county, and added these numbers to the overlays. Using this
process, Landata created an inked mylar "master overlay" for each of the 72
reorganized map sheets. Landata [**5]  then made sepia copies of the master
overlays, and began registering ownership and other changes on the sepia copies
from the hundreds of land grants that are recorded in the county each day. Using
this system, the defendants are able to retrieve current ownership and other
information on any tract by locating its arb number on the appropriate overlay
and entering that number into a computer database that contains data on each
tract.

   In 1985, several title companies, including Conroe Title, incorporated MDI as
a joint title plant. MDI and Landata then entered into a series of agreements
under which Conroe Title and MDI's other shareholders can use Landata's system
when they issue title insurance policies. On September 17, 1985, Landata asked
Mason for permission to use his maps as part of its system, but Mason denied the
request because Landata refused to pay a licensing fee. Landata then provided
its products to MDI without Mason's permission. Each of MDI's shareholders
purchased an original set of Mason's maps, and either MDI or the shareholders
reorganized the maps from 118 to 72 map sheets according to Landata's
specifications. Landata provided MDI with a set of sepia copies of [**6]  the
master overlays for each set of reorganized maps and with access to its computer
database. Annually from 1982 through 1986, and again in 1989, Landata or MDI
produced new, updated editions of the master overlays.

   Mason registered the copyright for one of the original 118 maps in October
1968. After learning of Landata's use of his maps, Mason registered the
copyrights for the remaining 117 original maps and the 115 revised maps between
October and December 1987. Mason filed this suit in September 1988, claiming
infringement of his 233 copyrights under 17 U.S.C. § 106, and seeking statutory
damages and attorney's fees under 17 U.S.C. §§ 504-05. In December 1989, the
defendants sought a partial summary judgment that, even if Mason proves
copyright infringement, 17 U.S.C. § 412 precludes an award of statutory damages
or attorney's fees for any infringement of the 232 maps that Mason registered in
1987. The district court granted this motion on June 1, 1990.  Mason v. 
Montgomery Data, Inc., 741 F. Supp. 1282, 1287 (S.D.Tex.1990). In September
1990, Mason filed a motion for partial summary judgment that the [**7]
defendants had infringed his copyrights. The defendants countered with motions
for summary judgment in which they asserted that Mason's maps are not
copyrightable and, even if they are, the defendants' use of the maps does not
constitute infringement. The district court granted the defendants' motions
after holding that Mason's maps are not copyrightable because the idea embodied
in the maps is inseparable from the maps' expression of that idea.  Mason v. 
Montgomery Data, Inc., 765 F. Supp. 353, 356 (S.D.Tex.1991). The court dismissed
Mason's claims with prejudice and awarded the defendants costs and attorney's
fees.

 [*138]  II. DISCUSSION

        A. The Copyrightability of Mason's Maps

        1. The IdeaExpression Merger Doctrine

The Copyright Act extends copyright protection to "original works of authorship
fixed in any tangible medium of expression." 17 U.S.C.A. § 102(a) (West
Supp.1992). The scope of that protection, however, is not unlimited. "In no case
does copyright protection for an original work of authorship extend to any idea,
... regardless of the form in which it is described, explained, illustrated, or
embodied in such work." Id. § 102(b) (emphasis [**8]  added). Thus, while a
copyright bars others from copying an author's original expression of an idea,
it does not bar them from using the idea itself. "Others are free to utilize the
"idea' so long as they do not plagiarize its "expression.' " Herbert Rosenthal 
Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir.1971). In some cases,
however, it is so difficult to distinguish between an idea and its expression
that the two are said to merge. Thus, when there is essentially only one way to
express an idea, "copying the "expression' will not be barred, since protecting
the "expression' in such circumstances would confer a monopoly of the "idea'
upon the copyright owner free of the conditions and limitations imposed by the
patent law." Id. at 742. By denying protection to an expression that is merged
with its underlying idea, we "prevent an author from monopolizing an idea merely
by copyrighting a few expressions of it." Toro Co. v. R & R Products Co., 787
F.2d 1208, 1212 (8th Cir.1986). n5

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   n5 Mason argues that application of the merger doctrine does not render a
work uncopyrightable, but rather prevents a finding of infringement of an
otherwise copyrightable work. See Kregos v. Associated Press, 937 F.2d 700, 705
(2d Cir.1991) (Second Circuit "has considered this so-called "merger' doctrine
in determining whether actionable infringement has occurred, rather than whether
a copyright is valid"). But this court has applied the merger doctrine to the
question of copyrightability. See Kern River Gas Transmission Co. v. Coastal 
Corp., 899 F.2d 1458, 1460 (5th Cir.) (because the idea and its expression
embodied in plaintiff's maps are inseparable, "the maps at issue are not
copyrightable"), cert. denied,     U.S. ---- 111 S. Ct. 374, 112 L. Ed. 2d 336
(1990). In any event, because we find the merger doctrine inapplicable in this
case, the effect of its application is irrelevant.

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   The district court applied these principles to the present case and concluded
that "the problem with the Hodge Mason maps is ... that [they] express the only
pictorial presentation which could result from a correct interpretation of the
legal description and other factual information relied upon by the plaintiffs in
producing the maps." Mason, 765 F. Supp. at 355 . The court believed that,

      t]o extend copyright protection to the Hodge Mason maps, which
     resulted from facts essentially in the public domain, would give the
     plaintiffs a monopoly over the facts. In other words, anyone who has
     the desire and ability to correctly interpret the legal descriptions
     and toil through the factual information relied upon by the plaintiffs
     in creating their maps, would create a pictorial presentation so
     substantially similar to the plaintiffs['] that they could be accused
     of copyright infringement. This result would clearly upset Congress'
     intent to balance the "competing concerns of providing incentive to
     authors to create and of fostering competition in such creativity."

 Id. at 356 (quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d
1240, 1253 (3rd Cir.1983), [**10]  cert. dismissed, 464 U.S. 1033, 104 S. Ct.
690, 79 L. Ed. 2d 158 (1984)). The court thus concluded that "the plaintiffs'
idea to create the maps, based on legal and factual public information, is
inseparable from its expression embodied within the maps, and hence not subject
to copyright protection." Id.

   We agree with Mason that the district court erred in applying the merger
doctrine in this case. To determine whether the doctrine is applicable in any
case, the court must "focus on whether the idea is capable of various modes of
expression." Apple Computer, 714 F.2d at 1253. Thus, the court must first
identify the idea that the work expresses, and then attempt to distinguish that
idea from the author's expression  [*139]  of it. If the court concludes that
the idea and its expression are inseparable, then the merger doctrine applies
and the expression will not be protected. Conversely, if the court can
distinguish the idea from its expression, then the expression will be protected
because the fact that one author has copyrighted one expression of that idea
will not prevent other authors from creating and copyrighting their own [**11]
expressions of the same idea. In all cases, "the guiding consideration in
drawing the line is the preservation of the balance between competition and
protection reflected in the patent and copyright laws." Herbert Rosenthal 
Jewelry, 446 F.2d at 742.

   The district court determined that Mason's idea, "which includes drawing the
abstract and tract boundaries, indicating the ownership name, the tract size,
and the other factual information" on a map of Montgomery County, was "to create
the maps, based on legal and factual public information." Mason, 765 F. Supp. at
356 . Mason argues that the court clearly erred in finding that this idea can be
expressed in only one or a limited number of ways. We agree. The record in this
case contains copies of maps created by Mason's competitors that prove beyond
dispute that the idea embodied in Mason's maps is capable of a variety of
expressions. Although the competitors' maps and Mason's maps embody the same
idea, they differ in the placement, size, and dimensions of numerous surveys,
tracts, and other features. The record also contains affidavits in which
licensed surveyors and experienced mapmakers explain  [**12]  that the
differences between Mason's maps and those of his competitors are the natural
result of each mapmaker's selection of sources, interpretation of those sources,
discretion in reconciling inconsistencies among the sources, and skill and
judgment in depicting the information. n6

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   n6 One of the experts, Pliny M. Gale, examined Mason's maps and the
competitors' maps and concluded that:

     the assembly, graphic representation, and positioning of various
     records and features involves considerable skill, judgment and
     originality.

        ... The differences I note between the Mason maps and the other
     maps which I have examined are to be expected because of the numerous
     interpretations of records, individual judgments, and map base
     selection which must be taken into account when producing an ownership
     map based on a large number of instruments spanning over 100 years of
     development.

        ...

        In my inspection of the maps, I found that the Mason map includes
     many features which are unique to the graphic representations selected
     by Mason, and which do not appear in any public record information.

     Gale Aff. at 2-4. Another mapmaker, Milton R. Hanks, stated:

        In compiling a map as detailed and complex as the Mason maps of
     Montgomery County, the mapmaker will necessarily make many individual
     judgments in placing various features from various sets of records
     onto a single map.

        ...

        ... When the Mason map is overlaid with the Tobin map at the same
     scale ..., many differences in placement of various features and
     surveys are readily observed. The differences between the two maps are
     exactly the sort of differences that I would expect to observe between
     two independently produced maps based on the same ancient records. The
     reason for the differences is that a large number of independent
     judgments must be made in any large-scale mapping project of this
     type.

     Hanks Aff. at 2, 5.


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   MDI argues that this evidence is irrelevant because there is no proof that
Mason and his competitors obtained their information from the same sources. But
the fact that different mapmakers with the same idea could reach different
conclusions by relying on different sources only supports our result. Whether
Mason and his competitors relied on different sources, or interpreted the same
sources and resolved inconsistencies among them differently, or made different
judgments as to how to best depict the information from those sources, the
differences in their maps confirm the fact that the idea embodied in Mason's
maps can be expressed in a variety of ways. By selecting different sources, or
by resolving inconsistencies among the same sources differently, or by
coordinating, arranging, or even drawing the information differently, other
mapmakers may create--and indeed have created--expressions  [*140]  of Mason's
idea that differ from those that Mason created. n7

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   n7 Citing Feist Publications, Inc. v. Rural Tel. Serv. Co.,     U.S. ----,
111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), the defendants contend that an author
's selection, coordination, and arrangement of facts merit consideration in the
decision whether a work is "original," but they are irrelevant to the
application of the merger doctrine. We disagree. The question in Feist was
whether a compilation of facts contained sufficient originality to be
copyrightable. The Court explained that, although the facts contained in a
compilation can never be original, the author's selection, arrangement, and
coordination of those facts may be.  Id. 111 S. Ct. at 1288-89 . But nothing in
Feist suggests that those factors are inapplicable to the question whether an
idea is subject to a variety of expressions. As we have explained, it is
precisely because mapmakers who seek to express the idea embodied in Mason's
maps must make choices as to selection, coordination, and arrangement that they
can express that idea in a variety of ways.

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   Finally, the defendants contend that this court's decision in Kern River Gas
Transmission Co. v. Coastal Corp., 899 F.2d at 1458, requires application of the
merger doctrine in this case. Kern River concerned the copyrightability of maps
on which Kern River Gas Transmission Company (Kern River) depicted the location
that it proposed for construction of a gas pipeline. The idea at issue in Kern 
River was simply the placing on a map of Kern River's certain "proposed location
for a prospective pipeline." Id. at 1464. This court concluded that that idea
merged with Kern River's expression because there was only one way to
effectively express that idea. Id.

   The defendants argue that the merger doctrine applies in this case because
drawing lines on a public map is the only way to depict the locations of surveys
and boundary lines in Montgomery County, just as it was the only way to depict
the location of a pipeline in Kern River. But the distinction between Kern River
and this case is not in the methods available for depicting an object's location
on a map, but in the ideas that the maps in the two cases embody. We cannot
determine [**15]  whether an idea is capable of a variety of expressions until
we first identify what that idea is. A court's decision whether to apply the
merger doctrine often depends on how it defines the author's idea. For this
reason, in defining the idea the court should be guided by "the balance between
competition and protection reflected in the patent and copyright laws." Herbert
Rosenthal Jewelry, 446 F.2d at 742. n8

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   n8 Thus, as one commentator states:

     In copyright law, an "idea" is not an epistemological concept, but a
     legal conclusion prompted by notions--often unarticulated and
     unproven--of appropriate competition. Thus, copyright doctrine
     attaches the label "idea" to aspects of works which, if protected,
     would (or, we fear, might) preclude, or render too expensive,
     subsequent authors' endeavors.

     Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works
     of Information after Feist v. Rural Telephone, 92 Colum.L.Rev. 338,
     346 (1992) (footnotes omitted).


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   We [**16]  focus in this case on an earlier point in the mapping process, a
point prior to the selection of information and decisions where to locate tract
lines. The idea here was to bring together the available information on
boundaries, landmarks, and ownership, and to choose locations and an effective
pictorial expression of those locations. That idea and its final expression are
separated by Mason's efforts and creativity that are entitled to protection from
competitors. The evidence in this case demonstrates that a mapmaker who desires
to express the idea of depicting the location and ownership of property in
Montgomery County in map form must select information from numerous sources,
reconcile inconsistencies among those sources, and depict the information
according to the mapmaker's skill and judgment. Although Mason sought to depict
the information accurately, the conflicts among the sources and the limitations
inherent in the process of representing reality in pictorial map form required
him to make choices that resulted in independent expression. Extending
protection to that expression will not grant Mason a monopoly over the idea,
because other mapmakers can express the same idea [**17]  differently. The
protection that each map receives extends only to its original expression, and
neither the facts nor the idea embodied in the maps is protected.  [*141]  "The
facts and ideas ... are free for the taking... "The very same facts and ideas
may be divorced from the context imposed by the author, and restated or
reshuffled by second comers, even if the author was the first to discover the
facts or to propose the ideas." Feist, 111 S. Ct. at 1289 (quoting Jane C.
Ginsburg, Creation and Commercial Value: Copyright Protection of Works of 
Information, 90 Colum.L.Rev. 1865, 1868 (1990)).

   For these reasons, we conclude that the district court erred by applying the
merger doctrine in this case. Because the idea embodied in Mason's maps can be
expressed in a variety of ways, the merger doctrine does not render Mason's
expression of that idea uncopyrightable.

        2. The "Originality" Requirement

Landata contends that, even if the merger doctrine does not apply, Mason's maps
are uncopyrightable because they are not "original" under Feist. Although the
district court applied the merger doctrine to hold that Mason's maps are [**18]
not copyrightable, it found that "the problem with the Hodge Mason maps is not a
lack of originality." Mason, 765 F. Supp. at 355 . We agree that Mason's maps
are original. Originality does not require "novelty, ingenuity, or aesthetic
merit." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5664; see also Feist, 111 S. Ct. at 1287 . Instead,
originality "means only that the work was independently created by the author
(as opposed to copied from other works), and that it possesses at least some
minimal degree of creativity." Feist, 111 S. Ct. at 1287 (citing 1 M. Nimmer &
D. Nimmer, Copyright § 2.01A-[B] (1990)). The parties do not dispute Mason's
claim that he independently created his maps, but Landata contends that they do
not possess the degree of creativity necessary to qualify them as original under
Feist.

   Mason's maps pass muster under Feist because Masons' selection, coordination,
and arrangement of the information that he depicted are sufficiently creative to
qualify his maps as original "compilations" of facts. n9 Under the originality
standard,  [**19]  bare facts are never copyrightable "because facts do not owe
their origin to an act of authorship." Id. at 1288. A compilation of facts,
however, may be copyrightable if the author made choices as to "which facts to
include, in what order to place them, and how to arrange the collected data so
that they may be used effectively by readers." Id. at 1289. The author's
selection, coordination, and arrangement of facts, however, are protected only
if they were "made independently ... and entail a minimal degree of creativity."
Id.

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   n9 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. § 101.

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   In Feist, the Court held that the defendant, who copied a list of names,
towns, and telephone numbers from the white pages of the plaintiff's telephone
directory, did  [**20]  not copy anything that was "original" to the plaintiff.
Id. at 1296. The Court explained that the plaintiff's selection of facts to
publish--the name, town, and telephone number of each person who applied for
telephone service--"lacks the modicum of creativity necessary to transform mere
selection into copyrightable expression." Id. And the plaintiff's arrangement of
these facts, which involved "nothing more than listing ... [the] subscribers in
alphabetical order," is "not only unoriginal, it is practically inevitable." Id.
at 1297. Because the plaintiff "simply [took] the data provided by its
subscribers and listed it alphabetically by surname ..., the end product is a
garden-variety white pages directory, devoid of even the slightest trace of
creativity." Id. at 1296.

   But the evidence in this case demonstrates that Mason exercised sufficient
creativity when he created his maps. In his deposition and affidavit, Mason
explained the choices that he independently made to select information from
numerous and sometimes conflicting sources, and to depict that information on
his maps. n10 [**21]  Mason's  [*142]  compilation of the information on his
maps involved creativity that far exceeds the required minimum level.

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   n10 Mason explained in his deposition:

     In 1967, I placed all of the survey lines in the county on the [USGS]
     topographical maps. Now, you just don't draw it on there. I placed
     each corner of each survey separately; each line of each survey
     separately ..., and each--the positioning of each survey corner, each
     survey line was a matter of judgment. You just can't buy a map, of any
     source I know, that has them all on there correctly... So, each line
     was placed on there. I made a judgment on each corner, each line for
     every survey. Then, the same system worked for the tracts within the
     survey; and I detailed on the topo map the individual real property
     lines within each survey.

     In his affidavit, Mason explained that he chose to "locate each
     individual survey on the topographic maps independently of each of the
     other surveys," to place the oldest titled grants on the topographic
     maps first, and then add the more recent surveys proceeding from the
     earliest grants, and to position the surveys on the USGS maps "not
     only by examining the record facts, but also by using topographic
     features shown on U.S.G.S. maps, especially the features from the
     U.S.G.S. map commonly found at property boundaries as a check on [his]
     placement of the survey and real property boundaries." Mason Aff. at
     2.


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   Mason's maps also possess sufficient creativity to merit copyright protection
as pictorial and graphic works of authorship. Historically, most courts have
treated maps solely as compilations of facts. See Wolf, supra note 4, at 227.
The Copyright Act, however, categorizes maps not as factual compilations but as
"pictorial, graphic, and sculptural works"--a category that includes photographs
and architectural plans.  17 U.S.C.A. § 101 (West Supp.1992). Some courts have
recognized that maps, unlike telephone directories and other factual
compilations, have an inherent pictorial or photographic nature that merits
copyright protection. See, e.g., Rockford Map Publishers, Inc. v. Directory 
Service Co., 768 F.2d 145, 149 (7th Cir.1985) ("Teasing pictures from the debris
left by conveyancers is a substantial change in the form of the information. The
result is copyrightable...."), cert. denied, 474 U.S. 1061, 106 S. Ct. 806, 88
L. Ed. 2d 781 (1986); United States v. Hamilton, 583 F.2d 448, 451 (9th
Cir.1978) ("Expression in cartography is not so different from other artistic
forms seeking to touch upon [**23]  external realities that unique rules are
needed to judge whether the authorship is original."). We agree with these
courts. As Wolf explains in his article:

     It is true that maps are factual compilations insofar as their subject
     matter is concerned. Admittedly, most maps present information about
     geographic relationships, and the "accuracy" of this presentation,
     with its utilitarian aspects, is the reason most maps are made and
     sold. Unlike most other factual compilations, however, maps translate
     this subject-matter into pictorial or graphic form... Since it is this
     pictorial or graphic form, and not the map's subject matter, that is
     relevant to copyright protection, maps must be distinguished from
     non-pictorial fact compilations... A map does not present objective
     reality; just as a photograph's pictorial form is central to its
     nature, so a map transforms reality into a unique pictorial form
     central to its nature.

Wolf, supra note 4, at 239-40.

   The level of creativity required to make a work of authorship original "is
extremely low; even a slight amount will suffice." Feist, 111 S. Ct. at 1287 .
We think that the process by which Mason,  [**24]  using his own skill and
judgment, pictorially portrayed his understanding of the reality in Montgomery
County by drawing lines and symbols in particular relation to one another easily
exceeds that level.

   Because Mason's maps possess sufficient creativity in both the selection,
coordination, and arrangement of the facts that they depict, and as in the
pictorial, graphic nature of the way that they do so, we find no error in the
district court's determination that Mason's maps are original.

        B. Availability of Statutory Damages

Mason sought statutory damages rather than actual damages. The district court
held that section 412 of the Copyright Act precludes an award of statutory
damages (and attorney's fees) for any alleged infringement of all but one of
Mason's  [*143]  maps. See Mason, 741 F. Supp. at 1285-87 . Mason calls that
holding error, but we agree with the district court. Section 412 provides that:

     no award of statutory damages or of attorney's fees, as provided by
     sections 504 and 505, shall be made for ... (2) any infringement of
     copyright commenced after first publication of the work and before the
     effective date of its registration, unless such registration [**25]
     is made within three months after the first publication of the work.

 17 U.S.C.A. § 412 (West Supp.1992). Mason argues that Congress' use of the
phrase "for any infringement" in this section reveals its intent that courts
treat each of a defendant's infringing acts separately and deny statutory
damages only for those specific infringing acts that commenced prior to
registration. Thus, Mason argues, section 412 allows him to recover statutory
damages and attorney's fees for any infringement that the defendants commenced
after he registered the copyrights, even though they commenced other, separate
infringements of the same work prior to registration. The district court
rejected this argument because it interpreted the term "infringement" to mean
all of a defendant's acts of infringement of any one work. Thus, the court
interpreted "the words "commencement of infringement' to mean the first act of
infringement in a series of on-going separate infringements." 741 F. Supp. at
1286 .

   We find section 412 to be ambiguous and open to either interpretation. But we
find support for the district court's interpretation in the legislative history
of section 412. The House  [**26]  Report explains that "clause (2) [of section
412] would generally deny an award of [statutory damages and attorney's fees]
where infringement takes place before registration." H.R.Rep. No. 1476 at 158,
reprinted in 1976 U.S.C.C.A.N. at 5659, 5774 (emphasis added). In contrast to
the "for any infringement" language of section 412, this language reveals
Congress' intent that statutory damages be denied not only for the particular 
infringement that a defendant commenced before registration, but for all of that
defendant's infringements of a work if one of those infringements commenced
prior to registration.

   In addition to the legislative history of section 412, we find support for
the district court's interpretation in 17 U.S.C. § 504. We look to section 504
for assistance in understanding section 412 because section 412 bars an award of
statutory damages "as provided by section 504." Section 504 provides that:

     the copyright owner may elect, at any time before final judgment is
     rendered, to recover, instead of actual damages and profits, an award
     of statutory damages for all infringements involved in the action with
     respect to any one work, for which any  [**27]  one infringer is
     liable individually, or for which any two or more infringers are
     liable jointly and severally, in a sum of not less than $ 500 or more
     than $ 20,000 as the court considers just.

 17 U.S.C.A. § 504(c)(1) (West Supp.1992) (emphasis added). Under this section,
the total number of "awards" of statutory damages (each ranging from $ 500 to $
20,000) that a plaintiff may recover in any given action depends on the number
of works that are infringed and the number of individually liable infringers,
regardless of the number of infringements of those works. n11 So if a plaintiff
proves that one  [*144]  defendant committed five separate infringements of one
copyrighted work, that plaintiff is entitled to only one award of statutory
damages ranging from $ 500 to $ 20,000. And if a plaintiff proves that two
different defendants each committed five separate infringements of five
different works, the plaintiff is entitled to ten awards, not fifty. It would be
inconsistent to read section 504 to include all of one defendant's infringements
of one work within "an award of statutory damages," and then read section 412 to
treat each infringement separately [**28]  for purposes of barring that award.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

   n11 The legislative history of section 504 is particularly direct on this
point:

     Although ... an award of minimum statutory damages may be multiplied
     if separate works and separately liable infringers are involved in the
     suit, a single award ... is to be made "for all infringements involved
     in the action." A single infringer of a single work is liable for a
     single amount ..., no matter how many acts of infringement are
     involved in the action and regardless of whether the acts were
     separate, isolated, or occurred in a related series.

        ...

        ... Where the infringements of one work were committed by a single
     infringer acting individually, a single award of statutory damages
     would be made... However, where separate infringements for which two
     or more defendants are not jointly liable are joined in the same
     action, separate awards of statutory damages would be appropriate.

     H.R.Rep. No. 1476 at 162, reprinted in 1976 U.S.C.C.A.N. at 5659,
     5778. As the D.C. Circuit explained, "both the text of [section
     504(c)(1) ] and its legislative history make clear that statutory
     damages are to be calculated according to the number of works
     infringed, not the number of infringements.... Only one penalty lies
     for multiple infringements of one work." Walt Disney Co. v. Powell,
     897 F.2d 565, 569 (D.C.Cir.1990).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**29]

   Moreover, section 504 provides that the plaintiff may elect to recover an
award of statutory damages for all of one defendant's infringements of any one
work "instead of actual damages and profits." Thus, if all of one defendant's
infringements commenced after registration, the plaintiff may not elect to
recover statutory damages for some of those infringements and actual damages for
the rest. See H.R.Rep. No. 1476 at 161, reprinted in 1976 U.S.C.C.A.N. at 5659,
5777 ("Recovery of actual damages and profits under section 504(b) or of
statutory damages under section 504(c) is alternative."). Under Mason's
argument, a plaintiff could recover actual damages for infringements that a
defendant commenced before registration, and still recover statutory damages for
infringements of the same work that the same defendant commenced after
registration. This argument must fail because "an award of statutory damages
"--which section 504 giveth and section 412 taketh away--encompasses all of one
defendant's infringements of one work.

   Finally, our conclusion accords with the purpose of section 412. Congress
included section 412 in the Copyright Act of 1976 because "copyright
registration [**30]  for published works, which is useful and important to users
and the public at large, would no longer be compulsory [under the 1976 Act], and
should therefore be induced in some practical way." H.R.Rep. No. 1476 at 158,
reprinted in 1976 U.S.C.C.A.N. at 5659, 5774. Denying an "award of the special
or "extraordinary' remedies of statutory damages or attorney's fees where ...
infringement commenced after publication and before registration" encourages
early registration of copyrights. Id. As one court has noted, "the threat of
such a denial would hardly provide a significant motivation to register early if
the owner of the work could obtain those remedies for acts of infringement
taking place after a belated registration." Singh v. Famous Overseas, Inc., 680
F. Supp. 533, 536 (E.D.N.Y.1988).

   We thus conclude that a plaintiff may not recover an award of statutory
damages and attorney's fees for infringements that commenced after registration
if the same defendant commenced an infringement of the same work prior to
registration. Mason published his 233 maps between 1967 and 1980, and registered
the copyright in one map in October 1968. By the time he registered [**31]  the
remaining 232 copyrights in 1987, the defendants had reorganized Mason's maps
and created and used the overlays and computer database. As to each work and
each defendant, the alleged acts of infringement that could give rise to an
award of statutory damages had commenced prior to registration of 232 of the
works. We thus uphold this ruling of the district court. If Mason proves
infringement, he may elect to recover statutory damages and attorney's fees only
for the infringements of the map that he registered in 1968.

        C. Defendants' Costs and Attorney's Fees

Because we reverse the district court's final judgment, the defendants are not
presently entitled to costs and attorney's fees as "prevailing parties." See 17
U.S.C. § 505. We thus reverse the court's amended  [*145]  final judgment of
June 5, 1991 that awarded costs and attorney's fees to the defendants.

III. CONCLUSION

   We REVERSE the court's judgments dismissing plaintiff's action and awarding
the defendants costs and attorney's fees, and we REMAND the case for further
proceedings consistent with this opinion.

   REVERSED and REMANDED.