Phony Maps & Copyright Traps

By all accounts, Ohio native Lillian Mountweazel (1942-1973) lived an interesting life. The former fountain designer turned to photography at the tender age of 21, exhibiting and publishing her critically-acclaimed photographs of such far-ranging subjects as Parisian cemeteries and American mailboxes. Mountweazel died at just 31 years old in an explosion, while on an assignment for Combustibles magazine. Had she lived a bit longer, she might have eventually settled down in Agloe, New York or Argleton, England -- places which, like Lillian Mountweazel, never really existed.

Those are just a few examples of copyright traps: fabrications deliberately tucked into otherwise factual publications in order to detect third-party copying. Copyright traps can be found in a variety of sources like:

• Encyclopedias: Lillian Mountweazel was an invention of The New Columbia Encyclopedia (1975). "If someone copied Lillian," editor Richard Steins told The New Yorker in 2005, "then we'd know they'd stolen from us."
• Dictionaries: In 2005, linguistic experts uncovered the New Oxford American Dictionary's copyright trap, "esquivalience." Defined as "the willful avoidance of one’s official responsibilities; the shirking of duties," editors confirmed it had been invented and inserted to detect copying. (The word appeared in both the first and second editions of the dictionary, but has been dropped from the most recent 3d edition.)
• Telephone directories: A dispute over phony phone-book entries made it all the way to the U.S. Supreme Court in 1991. In the seminal copyright case Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991), plaintiffs included twenty-eight fictitious listings in their telephone directory, from which defendants copied four. Writing for a unanimous Court, Justice Sandra Day O'Connor held that the plaintiff's directory listings were uncopyrightable facts, and their basic arrangement lacked sufficient originality to receive protection from the copyright laws.
• Search engine results: More recently, search engine competitors have used fictitious results as a way to detect copying. In 2011, Google created 100 fictitious search engine results for gibberish words like "hiybbprqag." Google later accused rival search engine Bing of stealing its results for these made-up entries. See a detailed review of the sting operation, complete with screen shots, at Search Engine Land.

Perhaps the most interesting examples of copyright traps occur in the world of cartography. Last week, the blog Atlas Obscura highlighted the age-old map-making practice of "trap streets" or even fictitious towns, such as the famously non-existent Argleton, England. Its American equivalent, Agloe, New York, was covered earlier this year by NPR and Big Think. It's impossible to know how many other "phantom settlements" might be lurking in old maps – a 1902 National Geographic Magazine article on map copyright law describes the practice, saying that "occasionally some map-makers intentionally introduce slight errors in order to more effectually catch the unwary infringer. Appearance of such an intentional error has been held evidence of copying."

In the aftermath of the U.S. Supreme Court's Feist decision, though, it seemed likely that trap streets and other fictitious map entries would be treated similarly to fictitious telephone directory listings – that is, as uncopyrightable facts. Atlas Obscura cites a Pennsylvania federal court opinion from Alexandria Drafting Co. v. Amsterdam, No. 95-1587 (E.D. Pa. June 4, 1997), which addressed the copying of trap streets, and held for the defendant after applying the reasoning of Feist. It should be noted, however, that legal research citators like Westlaw's KeyCite and LexisNexis's Shepard's service reveal that this particular opinion was withdrawn and vacated by the same court a year later, on June 22, 1998, by an order which read in part, "THE 6/4/97 DECISION IS WITHDRAWN AND VACATED AND OF NO FURTHER FORCE OR EFFECT." (According to a party brief in an unrelated case from the 2d Circuit Court of Appeals, this opinion withdrawal was part of a confidential settlement agreement between Alexandria Drafting and Amsterdam. Brief for Defendants-Appellees Cross-Appellants, Sparaco v. Lawler, No. 99-9519, 2002 WL 32174330 (2d Cir. June 28, 2002), at 29-30.) But while Alexandria Drafting Co. itself should no longer be cited by legal researchers, its reasoning and application of Feist would likely be repeated in future, similar court opinions concerning copyright traps.

To learn more about copyright law, check out the Goodson Law Library's research guide to Intellectual Property or Ask a Librarian.