United States Court of Appeals,
James J. ANDRIEN, Appellant in No. 90-5622
SOUTHERN OCEAN COUNTY CHAMBER OF COMMERCE; Manahawkin Newspapers, Inc.;
William Sherry, t/a Surf Printing, Appellees in No. 90-5622.
James J. ANDRIEN, Appellant in No. 90-5623
Joseph W. INMAN and Inman Realty, Appellee in No. 90-5623.
Nos. 90-5622, 90-5623.
Argued Jan. 14, 1991.
Decided March 1, 1991.
Rehearing and Rehearing In Banc
Denied April 3, 1991.
Donald C. Simpson (argued), Simpson & Simpson, P.C., Moorestown, N.J., for
Robert G. Shepherd (argued), Mathews, Woodbridge & Collins, Princeton, N.J., for Southern Ocean County Chamber of Commerce.
Gerard P. Scala, Hughes & Hendrix, West Trenton, N.J., for Manahawkin Newspapers, Inc.
Eric G. Daniel, Frank P. Cavallo, Jr., Slimm, Dash & Goldberg, Westmont, N.J., for Williams Sherry t/a Surf Printing.
Marc Spielberg, Barnegat Light, N.J., for Joseph Inman and Inman Realty.
Before STAPLETON, GREENBERG and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
The district court held that the plaintiff who assembled a series of maps and turned
them over to a printing firm to prepare a composite was not the author for copyright
purposes. Accepting the plaintiff's version of events for summary judgment purposes,
we conclude that the record does not support depriving plaintiff of his status as
author. Accordingly, we will reverse the summary judgment in favor of defendants and
remand for further proceedings.
Plaintiff James Andrien was a real estate agent on Long Beach Island, New Jersey. In
1980, he received a copyright registration from the Copyright Office for a map of Long
Beach Island. The certificate described a copyright for a compilation of pre-existing
maps, street names, street lines and other information assembled and created from a
personal survey of the island. Andrien engaged the A & H Company to print the map.
Andrien asserts that sometime after the original printing was exhausted, defendants
distributed unauthorized copies of the map and infringed the copyright. He filed
complaints in the district court seeking injunctive relief as well as damages for
copyright infringement, unfair trade practices and unfair competition. Named as
defendants were Southern Ocean County Chamber of Commerce, Joseph Inman and Inman
Realty, Manahawkin Newspapers, Inc. and William Sherry, trading as Surf Printing, all of
whom allegedly either distributed, prepared or printed the maps.
Andrien decided to prepare a map of the area when he found the sketch distributed by
defendant Chamber of Commerce incomplete and difficult to read. He collected available
maps of local taxing bodies and a divers' map locating shipwrecks in the area. In a
personal survey Andrien noted civic landmarks, fishing sites and previously unlisted
street names. He determined the scale to be used on the finished map by driving his
automobile between intersecting streets and measuring the distance on the odometer.
The collection of maps that Andrien took to A & H Printers used varied scales and
almost illegible street names. To prepare the new map for printing, A & H assigned
Carolyn Haines to do the "art work." This included coordinating the scales,
relettering the street names and adding designations for the diving sites as well as for
local points of interest. Haines photographed the various maps to synchronize the
scales and typed individual labels for the street names. After a large paste-up
working map was completed, it was reduced to a commercially useable size and printed.
In his deposition Andrien testified that Haines performed these assignments at his
direction, "with me at her elbow practically." Almost daily he spent about an hour at
the print shop over a three week period.
The parties deposed Herbert Josephson, a representative of the A & H Printing Company.
His testimony tended to cast some doubt that Andrien's contribution to the final
product was as extensive as he asserted, but in considering the motion for summary
judgment filed by defendants the district court properly accepted the plaintiff's
version. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied,
429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
*134 The district court concluded that Andrien was not the author because, although he
had closely supervised the project, "he did none of the actual layout [and] was not
always present when Haines worked on the map." The judge believed that Andrien had not
translated his idea into a fixed, tangible expression but that had been done by A & H
Printing, "or more specifically, Carolyn Haines." The judge also rejected joint
authorship, "I think since Andrien supplied information and ideas from which A & H and
Haines created the map, Andrien cannot even claim to be a joint author with A & H
The court then addressed the question of whether the map was made as "work- for-hire"
and perhaps deserving of copyright protection under that theory. The record, however,
did not establish that Andrien was A & H's employer or that a written agreement existed,
and therefore the map was not a work-for- hire. See 17 U.S.C. <section> 101;
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d
On appeal, Andrien contends that whether he is the author is the subject of a genuine
factual dispute and therefore summary judgment was inappropriate. He does not
challenge the district court's work-for-hire ruling.
 As a general rule copyright protection is available for maps, 17 U.S.C. <section>
102(a)(5), or a compilation of existing maps. 17 U.S.C. <section> 103. See Rockford Map
Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir.1985), cert. denied,
474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); United States v. Hamilton, 583
F.2d 448 (9th Cir.1978); Amsterdam v. Triangle Publications, Inc., 189 F.2d 104 (3d
Cir.1951). [FN1] See generally 1 M. Nimmer & D. Nimmer, Nimmer on Copyright <section>
2.08 [A] (1990). Accepting the copyright statute's application to the map under
consideration, the parties present us with a narrow issue: the controversy over
Andrien's status as an author.
FN1. Professor Nimmer questions whether the direct observation rule articulated in
Amsterdam survives the 1976 Act. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright
<section> 2.08[A][b] at 2-80 (1990). We need not decide that point because the map
under consideration here meets the more stringent Amsterdam criteria.
 Copyright is available only for the expression of a work of authorship, not for
a mere idea. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222,
1234 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987).
Generally authorship is a factual question for the jury. S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081, 1086 (9th Cir.1989); Del Madera Properties v. Rhodes and Gardner, Inc.,
820 F.2d 973, 980 (9th Cir.1987).
 A plaintiff's duly issued certificate of registration suffices as prima facie
evidence of the copyright's validity. 17 U.S.C. <section> 410(c); see Williams
Electronics, Inc. v. Artic Int'l., Inc., 685 F.2d 870, 873 (3d Cir.1982). A
defendant's burden of rebutting the presumption varies with the issues bearing on the
validity of the copyright. See Masquerade Novelty, Inc. v. Unique Industries, Inc.,
912 F.2d 663, 668 (3d Cir.1990).
The Supreme Court has stated that "[a]s a general rule, the author is the party who
actually creates the work, that is, the person who translates an idea into a fixed,
tangible expression entitled to copyright protection." Community for Creative
Non-Violence, 109 S.Ct. at 2171. The Copyright Act defines a work as "fixed" in a
tangible medium of expression when "its embodiment in a copy ... by or under the
authority of the author, is sufficiently permanent ... to permit it to be ...
reproduced." 17 U.S.C. <section> 101.
The critical phrase is "by or under the authority of the author." That statutory
language and the Supreme Court's guidance produce a definition of an author as the party
who actually creates the work, that is, the person who translates an idea into an
expression that is embodied in a copy by himself or herself, or who authorizes another
to embody the expression in a copy. The definition, however, has limits. *135 When
one authorizes embodiment, that process must be rote or mechanical transcription that
does not require intellectual modification or highly technical enhancement such as
occurred in M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.1990)
(architectural drawings), Geshwind v. Garrick, 734 F.Supp. 644 (S.D.N.Y.1990) (computer
animated film), and Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609
F.Supp. 1307 (E.D.Pa.1985) (computer program), aff'd, 797 F.2d 1222 (3d Cir.1986), cert.
denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987).
Poets, essayists, novelists, and the like may have copyrights even if they do not run
the printing presses or process the photographic plates necessary to fix the writings
into book form. These writers are entitled to copyright protection even if they do not
perform with their own hands the mechanical tasks of putting the material into the form
distributed to the public.
There is a "fundamental distinction" between an "original work" of authorship and "the
multitude of material objects in which it can be embodied." H.R.Rep. No. 1476, 94th
Cong., 2d Sess. 53, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5666. As the
House Report explained:
"Thus, in the sense of the bill, a 'book' is not a work of authorship, but is a
particular kind of 'copy.' Instead, the author may write a 'literary work,' which in
turn can be embodied in a wide range of 'copies' and 'phonorecords,' including books,
periodicals, computer punch cards, microfilm, tape recordings, and so forth."
The Copyright Act does not specifically define the relationship between writer and
printer, but does address a somewhat analogous, albeit more ambiguous, situation. Some
forms of sound recordings are protected under 17 U.S.C. <section> 102(a)(7). According
to the House Report, these recordings "are clearly within the scope of the 'writings of
an author' capable of protection." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 56, reprinted
in 1976 U.S.Code Cong. & Admin.News 5659, 5669. The Report considered authorship to
apply not only to the performer, but also to the producer responsible for setting up the
recording session, processing the sounds and compiling and editing them to make a final
sound recording. In some cases, however, the record producer's contribution could be
so minimal that the performance is the only copyrightable element in the work.
In questioning the House Report, Professor Nimmer remarks that the solitary act of
"setting up the recording session" is "ill-based" for claiming authorship on behalf of
the record producer. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright <section> 2.10[A][b]
at 2-146 (1990). Indeed, "this is no more an act of 'authorship' than is the act of
one who makes available to a writer a room, a stenographer, a typewriter, and paper."
Mechanically transposing an author's expressions or compilations is somewhat analogous
to producing a sound recording, although the latter process may require more technical
choice and artistic discretion. Significant to the case at hand is Nimmer's comment
emphasizing that a party can be considered an author when his or her expression of an
idea is transposed by mechanical or rote transcription into tangible form under the
authority of the party.
 Andrien testified that he expressly directed the copy's preparation in specific
detail. His compilation needed only simple transcription to achieve final tangible
form. From his description, Carolyn Haines acted as his amanuensis just as does a
stenographer in typing material dictated by another person.
On this record none of Haines' activities in any way intellectually modified or
technically enhanced the concept articulated by Andrien other than to arrange it in a
form that could be photographed as part of the embodiment process. Moreover, when A &
H employees printed the maps they did not change the substance of Andrien's original
Based on the statute, its legislative history, caselaw and academic commentary, we
conclude that the activities to which Andrien testified qualified him as an author *136
within the copyright statute's requirements. In the present procedural posture of this
case, it was therefore inappropriate to enter summary judgment.
Because the case must be remanded for further proceedings, we point out that if the
evidence establishes that Haines was more deeply involved in the preparation of the map
than Andrien's testimony indicates, she may perhaps be a joint author. See 17 U.S.C.
<section> 201(a). The 1976 Act defines a joint work as one "prepared by two or more
authors with the intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole." 17 U.S.C. <section> 101. At this point we
need not decide whether each author of a joint work must make an independently
copyrightable contribution. See generally 1 M. Nimmer & D. Nimmer, Nimmer on Copyright
<section> 6.07 at 6-18.2 (joint authors need not make independently copyrightable
contributions); see also Community for Creative Non-Violence v. Reid, 846 F.2d 1485,
1497 (D.C.Cir.1988) (dicta), aff'd on other grounds, 490 U.S. 730, 109 S.Ct. 2166, 104
L.Ed.2d 811 (1989). But see Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th
Cir.1990) (joint authorship requires each author to make independently copyrightable
 A finding of joint authorship would not, in itself, result in dismissal of
Andrien's claim. As a co-owner, he would still be entitled to claim a copyright in the
individual whole of protected work. M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d
1486, 1493 (11th Cir.1990).
The judgment of the district court will be reversed and the case will be remanded for
further proceedings consistent with this opinion.
927 F.2d 132, 59 USLW 2574, 1991 Copr.L.Dec. P 26,696, 18 U.S.P.Q.2d 1041