The Examining Division denied Darden’s request for reconsideration and registration of his copyright claims. The examining attorney explained that
[i]n the case of a derivative work, copyright protection covers only the additions or changes appearing in the work for the first time … mean[ing] that the new material must contain a sufficient amount of original and creative authorship to be copyrightable. Copyright does not extend to any preexisting or previously registered material. … [W]here the new material consists solely of the uncopyrightable elements such as a change of layout, format, size, spacing or coloring, registration is not possible.
J.A. 94. The examiner concluded that the changes made to Darden’s maps work “amount[ed] primarily to layout and format as well as de minimis compilation” and therefore lacked “a sufficient amount of originality and creativity to support a copyright registration.” J.A, 97–98. With respect to the APPRAISERSdotCOM work, the examiner again suggested the possibility of a registrable claim “in only the ‘text and compilation of data’” but indicated that a new application, revised to limit the claim to “‘text and compilation of data,’” was required. J.A. 98.
Darden then sought review of the denial of his applications by the Copyright Office Board of Appeals. Darden’s argument was essentially identical to that asserted in his request for reconsideration:
Mr. Darden is not seeking a copyright on one particular design element of the maps in question, nor is he asking for protection of “simple combinations” of elements such as “familiar shapes, symhols, and designs; mere variations of typographic ornamentation, lettering, fonts or coloring.” Mr. Darden requests protection for the overall pictorial expressions of his maps.
Mr. Darden’s overall design, his special combination of font and color selection, selection and arrangement of geographic locations such as counties, visual effects such as relief, shadowing, and shading, labeling, and call-outs provide the “creative spark” that make[s] the maps original and eligible for protection.
J.A. 87. Darden also presented his own declaration in which he stated that he had “received calls from people and companies asking whether I would license our maps for them to use on their web sites … [demonstrating that] people recognize the maps as being unique and proprietary to us.” J.A. 92.
The Board of Appeals again affirmed the denial of registration for both the Maps and the APPRAISERSdotCOM works. With regard to the copyright claim in the maps themselves, the Board concluded, as did the Examining Division, that the maps were merely “representations of the preexisting census maps in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” J.A. 74 (internal quotation marks omitted). The Board also noted that any marketplace confusion created by the use of Darden’s maps by third parties was irrelevant to the question of whether the maps were copyrightable, as were requests to Darden by website browsers for license to use the maps. As for the APPRAISERSdotCOM application, the Board of Appeals affirmed the denial of registration “due to the expansive scope of the claim.” J.A. 76. Although the Board of Appeals endorsed the notion that there could well be copyrightable elements included on the website, Darden’s claim as stated in his registration application—for “text, maps, and formatting of an Internet web page”—was simply “too broad” to warrant protection. J.A. 76.
Darden then brought this action against the Register of Copyrights under the Ad-
