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Nielsen's Designated Market Area Maps Protectable as Creative, Original Elements

Tuesday, September 13, 2011

By Anandashankar Mazumdar

The Nielsen ratings company's annual maps dividing up the country county-by-county into television viewership regions are protectable works under U.S. copyright law, the U.S. District Court for the Northern District of Illinois ruled Aug. 29 (Nielsen Company (US) LLC v. Truck Ads LLC, N.D. Ill., No. 1:08-cv-06446, 8/29/11).

Granting in part a motion for summary judgment in Nielsen's favor, the court further ruled that the use of the Nielsen maps by the Federal Communications Commission and references by that agency to Nielsen-defined regions in its telecommunications licenses did not convert Nielsen's works into the equivalent of the text of a statute, whose use cannot be restricted.

Nielsen Draws New TV Market Maps Yearly

The Nielsen Company (US) LLC, based in Schaumburg, Ill., markets demographic information and program ratings to providers of television programming and other media content. Nielsen's data is organized by geographic areas known as “designated market areas.” Beginning in the 1960s, Nielsen divided up the territory of the United States into DMAs and began publishing maps showing its DMAs. Each year, Nielsen redraws maps based on its demographic data of television viewership.

Truck Ads LLC of McLean, Va., operates an advertising “affiliate system” in which it facilitates the purchase of advertising on the sides of trucks and mobile billboards by third parties. Truck Ads maintains a website on which it displayed Nielsen DMA maps for several years and also distributed copies of such maps to its customers.

Nielsen sued Truck Ads, alleging copyright infringement. Truck Ads argued that the DMA maps were not protectable under copyright law. Both parties moved for summary judgment.

Arbitron's Lead Does Not Preclude Nielsen's Rights

Judge Rebecca R. Pallmeyer first rejected the argument that Nielsen's DMA maps were not original because it had copied the maps from Arbitron Inc., another media ratings company.

First, the court rejected the argument that the maps were not original because Arbitron was the first company to divide up the territory of the United States based on television viewership. Arbitron originally create its “areas of dominant influence” for the radio industry.

“That Arbitron may have done this first does not defeat Nielsen's copyright, so long as Nielsen made an original contribution,” the court said.

Nielsen presented persuasive evidence that its maps were original, including the expert testimony of a former Arbitron executive. The court said:

[The expert] reviewed map data and concluded that approximately 75 percent of the boundaries of Nielsen's DMA maps are different from Arbitron's ADI maps, even if that difference accounts for just 6 percent of the total counties … [The expert] also concluded that approximately 10 percent of the common market areas had differences of five counties or more, and that one, Denver, has a difference of twenty counties. … [He] noted that there are five market areas that Arbitron and Nielsen do not share at all. … Truck Ads does not meet these assertions head-on. Instead, it argues that “[t]he fact that designated market areas may differ from one Nielsen map to another, or from Arbitron's 1989-90 map to Nielsen's 2004-05 map, demonstrates only that market areas may change over time as populations move and viewing habits shift, not that anything ‘original' exists about those county assignments in the copyright sense.”

Maps Not Mere Embodiments of Facts

The court took this statement by Arbitron as a “concession” that the Nielsen maps were not simply copies of the Arbitron's maps and thus moved to Arbitron's argument that under the merger doctrine the maps merely embodied factual information, not creative content, ineligible for copyright protection.

The evidence that different companies use differing data and criteria to divide the country in different ways showed that Nielsen's DMA maps were not merely embodiments of facts. The court said:

[B]ecause different data sets underlie different DMA or market region arrangements, and different criteria are used by different companies to create different DMAs (or ADIs, or similar market regions), a DMA is susceptible of more than one form of expression, and not barred from copyright protection by the merger doctrine.

DMAs Not Unprotectable as the Content of Law

Next, the court rejected the argument that the use of Nielsen-defined DMAs by the Federal Communications Commission barred copyright protection as a statement of law that must be referred to by entities operating under its rule.

Distinguishing Veeck v. Southern Building Code Congress International Inc., 293 F.3d 791, 63 USPQ2d 1225 (5th Cir. 2002), the court said that mere reference to a copyrighted work by a statute does not make such a work part of the law and thus unprotectable.

At issue in Veeck was a model code drafted by a private entity that, in Veeck‘s words, “serve[d] no other purpose than to become law.”

By contrast, “In this case … it is apparent that DMAs were not created with an eye toward legislative enactment.”

More like the facts in the instant case, according to the court, were those in CCC Information Services Inc. v. Maclean Hunter Market Reports Inc., 44 F.3d 61 (2d Cir. 1994), in which a publisher compiled in its “Red Book” the projected values of used cars. Some state statutes referred to Red Book; however, according to CCC, the reference to Red Book values by the government did not put the work in the public domain, no more than assigning a public school student to read a book would put that book in the public domain.

“No authority establishes that the FCC's references to Nielsen's maps place them within the public domain,” the court said. “Those references instead suggest that the maps have value and apparently cannot be replicated without effort or cost by that agency. The FCC would presumably not welcome the conclusion that its use of the maps destroys Nielsen's incentive to produce them.”

Finally, the court rejected the argument that to the extent that Nielsen had any protectable rights, they should extent only to the year-to-year changes in the maps, not to the entire maps. The fact that Truck Ads was unable to locate a copy of Nielsen's very first DMA map did not imply that Nielsen had copied it from Arbitron or some other source, the court said.

Having established that Nielsen held protectable rights in its maps, however, the court declined to award summary judgment of infringement, finding genuine outstanding issues of material fact regarding proof of copying and substantial similarity.

Thus the court award summary judgment in Nielsen's favor only to the extent that it held valid copyright interest in its DMA maps. The remainder of the summary judgment motions were dismissed.

Truck Ads was represented by David Lee Applegate of Williams Montgomery & John, Chicago. Nielsen was represented by Gregory James Leighton of Neal, Gerber & Eisenberg, Chicago.


Opinion at http://pub.bna.com/ptcj/0806446Aug29.pdf 

 

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