united-states copyright fair-use
copyright question (constructs and presentations)
<p>I got a threatening email from someone today alleging copyright infringement on <a href="http://www.wikitrail.org/" rel="nofollow noreferrer">a website</a> that I built as a personal project back in 2013 to crowdsource the latest trail data from the long-distance hiking community. This person is an owner of a backpacking gear company which apparently owns the rights to the AT Guide, which is a popular resource of trail data among hikers. They are claiming that the part of my site which dynamically builds a PDF out of crowdsourced trail data is unfairly borrowing some visual conventions which can also be found in their guidebook.  (FWIW, I make no money from this site; it was my attempt to give back to the trail community.)</p>

<p>In their email, they specifically point to four aspects of the PDF which are similar to their printed guidebook. I've highlighted three of them in <a href="https://i.stack.imgur.com/RDyPG.jpg" rel="nofollow noreferrer">this screenshot</a>. They're claiming copyright on: 1) the way of representing distances between shelters, 2) the sideways orientation of the elevation profile, 3) the icons, and 4) the convention of representing direction and distance for waypoints that are off-trail (e.g. "0.1e" = 0.1 miles east of the trail).</p>

<p>I'm new to copyright law. Can you really copyright such minor visual things? Their email specifically says that the "contructs [sic] and presentations" are protected by copyright. FWIW, I checked the US <a href="https://cocatalog.loc.gov/" rel="nofollow noreferrer">copyright database</a> for the author's name (the one who allegedly has had the copyright since 2008) and nothing came up.</p>

<p>Since I make no money from this site, I'm reluctant to spend time/money fighting this. But if they're just trying to bully me using legal jargon (but no actual legal standing), I'd like to push back. Anyone been through this sort of thing before? Thanks for any advice!</p>

<p><strong>THE FOLLOWING OPINION IS NOT LEGAL ADVICE</strong></p>

<p>Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in <em>specifics</em> (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned.</p>

<p>Things you <strong>cannot copyright</strong>:</p>

<ol>
<li>A font (except as a computer font <em>file</em> but not as used in a document).</li>
<li><strong>A concept</strong> (a main issue here).</li>
<li>A idea for a "way" or "order" to display data.</li>
<li>Mere data or facts can not be copyrighted nor can ideas.</li>
<li>Anything sourced from the US government (trail data, topos, etc.)</li>
<li>Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. </li>
</ol>

<p><strong>The Law:</strong></p>

<blockquote>
  <p><em>In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.</em></p>
</blockquote>

<p>For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different.</p>

<p>Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. <em>CONCEPTS AND DATA ARE NOT COPYRIGHTABLE</em>, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different.</p>

<p><strong>OTHER FORMS OF IP PROTECTION</strong></p>

<p>Now, just because some intellectual property can't be protected  by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a <em>design</em> patent. A logo or brand name can be given a trademark. </p>

<p>Here's an interesting court ruling on the <a href="https://www.hdp.com/blog/2018/07/30/displaying-data-is-an-even-more-abstract-idea-than-patent-eligibility/" rel="nofollow noreferrer">subject of data display.</a> Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form.</p>

<p>NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on.</p>

<p><strong>BUT WAIT...THERE'S MORE</strong></p>

<p>So, I am going to GUESS that you are talking about <strong><em>AT Guide</em></strong> by <strong><em>David Miller</em></strong>? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by <a href="https://rads.stackoverflow.com/amzn/click/com/0961392142" rel="nofollow noreferrer" rel="nofollow noreferrer">EDWARD TUFT</a></p>

<p><a href="https://i.stack.imgur.com/Iew3x.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/Iew3x.png" alt="Text"></a></p>

<p>So, LOL. Is this the guide they claim you are "copying"?? </p>

<p><a href="https://i.stack.imgur.com/3qAPf.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/3qAPf.png" alt="AT Guide Example (fair use)"></a></p>

<h2>THESE AREN'T THE ICONS YOU'RE LOOKING FOR</h2>

<p>Okay, so let's go one by one and their claims against you:</p>

<p><strong>1. The way of representing distances between shelters</strong>
"The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation.</p>

<p><strong>2. The sideways orientation of the elevation profile</strong>
Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious."</p>

<p><strong>3. The icons</strong> 
Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are <em>not even remotely the same</em>. Using icons to indicate services or features is COMMON. Not copyrightable. <a href="http://www.dmlp.org/legal-guide/works-not-covered-copyright" rel="nofollow noreferrer">http://www.dmlp.org/legal-guide/works-not-covered-copyright</a> </p>

<blockquote>
  <p><em>In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or <strong>mere variations of typographic ornamentation</strong>, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)</em></p>
</blockquote>

<p><strong>4. The convention of representing direction/distance for waypoints.</strong>
Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." </p>

<p><strong>FINAL FORM, EXPRESSIVE FORM</strong> is copyrightable <strong>NOT FORMATTING CONCEPTS.</strong></p>

<p>Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't."</p>

<p>The "actual" icon drawings he used are copyrightable. Your icons are <em>clearly different.</em></p>

<p>I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves!</p>

<p><strong>DOES HE EVEN HAVE A VALID COPYRIGHT?</strong></p>

<p>For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can <em>in context of the work in total</em>. These three conditions must ALL be present (from <a href="http://www.rbs2.com/ccompile.pdf" rel="nofollow noreferrer">http://www.rbs2.com/ccompile.pdf</a>):</p>

<ol>
<li>The collection and assembly of pre-existing material, facts, or  data.</li>
<li>The selection, coordination, or arrangement of those materials</li>
<li>The creation, by virtue of the particular selection, coordination,
or arrangement of an original work of authorship.</li>
</ol>

<p>So It seem to be that his guide meets these, but his copyright is for his work in total.</p>

<p>You are NOT using his data. You are using your OWN data. Based on my reading of <em><a href="https://law.justia.com/cases/federal/appellate-courts/F2/945/509/289784/" rel="nofollow noreferrer">Key vs Chinatown Today</a></em> you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "<em>similarity is not infringement</em>."</p>

<p><strong>SEARCH AND YOU WILL FIND</strong></p>

<p>On the subject of the copyright, here's the copyright on AT guide:</p>

<p><a href="https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&amp;Search_Code=TALL&amp;PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&amp;SEQ=20190506230418&amp;CNT=25&amp;HIST=1" rel="nofollow noreferrer">https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&amp;Search_Code=TALL&amp;PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&amp;SEQ=20190506230418&amp;CNT=25&amp;HIST=1</a></p>

<p>If the link doesn't work due to expiration or a cookie, it should look like this:</p>

<p><a href="https://i.stack.imgur.com/awDHH.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/awDHH.png" alt="enter image description here"></a></p>

<p>It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is <a href="https://antigravitygear.com" rel="nofollow noreferrer">https://antigravitygear.com</a> ? Did THEY contact you or David Miller? Or did they claim to be an attorney?</p>

<p>I'd love to see the email. Attorneys don't email <em>dunning</em> letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an <em>attorney</em> it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an <em>email</em>, it has to be USPS or trackable.</p>

<p>This means the guy that made the other PDF is annoyed or whatever.</p>

<p>If he claimed to be an attorney, that's <em>VERY</em> illegal if he's not.</p>

<p>And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. </p>

<p>The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US.</p>

<p>Mere typographic elements do not rise to "an expressive work of art".
A mountain profile that is nothing but a illustrative line based on data also does not.</p>

<blockquote>
  <p>Can you really copyright such minor visual things? </p>
</blockquote>

<p>Yes. These are protected as <a href="https://copyright.unimelb.edu.au/information/what-is-copyright/artistic-works" rel="nofollow noreferrer">artistic works</a> and your confusion is probably coming from considering them as <a href="https://copyright.unimelb.edu.au/information/what-is-copyright/literary-works" rel="nofollow noreferrer">literary works</a>.</p>
