There has been much media coverage about the U.S. Postal Service being ordered to pay $685,000 to Frank Gaylord after using a picture of Gaylord’s Washington, D.C. Korean Memorial sculpture on a commemorative stamp. In 2010, I did a three-part blog posting about the Gaylord case so I wanted to highlight a few facts that most of the current media coverage hasn’t emphasized:
Gaylord’s Win Came in 2010. Gaylord didn’t win the copyright infringement case just last week. He actually “won” on February 25, 2010, when the U.S. Court of Appeals for the Federal Circuit ruled that the United States was liable for infringing Gaylord’s copyright in the sculptor. Gaylord v. U.S., 595 F.3d 1364 (2010). It has taken until September 2013 for the court system to arrive at the $685,000 damage award.
Lawsuit Caused by an Avoidable U.S. Contract Mistake. The United States hired Cooper-Lecky Architects, P.C. (Cooper-Lecky) as the primary contractor for the Korean Memorial. Cooper-Lecky then hired Gaylord as the sculptor. Cooper-Lecky did not properly acquire all of Gaylord’s rights in the sculpture. So even though Cooper-Lecky granted the government all the rights Cooper-Lecky held in the Memorial, those transferred rights did not include Gaylord’s work on the column sculpture. You cannot grant rights you don’t have. That’s why the U.S. found itself in this copyright infringement lawsuit with Gaylord.
Stamp Yielded $17 Million for the U.S.P.S. Before retiring the stamp in March, 2005, the U.S. Postal Service received over $17 million from the sale of nearly 48 million of the Korean War Veterans Memorial stamps. The $5.4 million figure reported in much of the media is from the sales of stamps to collectors who did not use the stamps to send mail.
Why Sculpture on Stamp Was Not Fair Use. The U.S. Postal Service’s issuance of a Korean War Veterans Memorial stamp was not a fair use because, according to the Court of Appeals, the Postal Service’s use was a commercial, non-transformative depiction of the sculpture, which is an expressive and creative work entitled to a high level of copyright protection.
U.S. Lost Sculpture Co-Authorship Claim. During the lawsuit, the U.S. government claimed to be a co-author of Gaylord’s sculpture. The Court of Appeals said “No!”. Instead, Gaylord is the sole author and the U.S. government only provided Gaylord with some direction and ideas which do not qualify as independent copyrightable contributions eligible for co-authorship status.