Gaylord v. US, Part One, Korean War Veterans Memorial on Stamp Is Not Fair Use

On February 25, 2010, the United States Court of Appeals for the Federal Circuit, made a decision in the case of Gaylord v. United States. While many reports of the opinion focus on the copyright fair use determination, the court opinion also provides instructive analysis on what it takes to qualify as a co-owner of a copyright and potential pitfalls in the copyright provisions of government contracts.

This is the first of a three-part blog posting. In this first part, I discuss the Gaylord fair use analysis. In Parts Two and Three, I’ll discuss the copyright co-ownership and government contracting portions of Gaylord v. United States.

Background of the Dispute

In 1986, Congress enacted legislation to build the Korean War Veterans Memorial in Washington, D.C. Cooper-Lecky Architects, P.C. (Cooper-Lecky) was selected as the primary contractor for the Memorial. Cooper-Lecky selected Frank Gaylord, a nationally recognized sculptor, as the sculptor for the Memorial. Gaylord sculpted nineteen stainless steel statues representing a platoon of nineteen foot soldiers in formation referred to as The Column.

After completion of the Memorial, Photographer John Alli took several photographs of the Memorial including a photograph taken in January 1996 after a snowstorm that left the statues in the column covered with snow. In 2002, the U.S. Postal Service issued the stamp, titled “Korean War Veterans Memorial.” which features one of Mr. Alli’s photo and depicts fourteen of Gaylord’s nineteen soldier sculptures.

The Postal Service received over $17 million from the sale of nearly 48 million of the Korean War Veterans Memorial stamps. In addition, the Postal Service sold retail goods such as commemorative panels and framed art featuring images of the stamp. The Postal Service had the permission of Mr. Alli and Cooper-Lecky to use the image on the stamp. The Postal Service did not have the permission of Mr. Gaylord. Mr. Gaylord sued the Postal Service for copyright infringement.

Fair Use Analysis

One of the United States’ defenses to Mr. Gaylord’s lawsuit was fair use. The United States Court of Appeals for the Federal Circuit did not agree. Here is the court’s analysis when applying the copyright fair use four factor test:

Factor One. What are the purpose and character of the Postal Service’s use of Gaylord’s work? The Postal Service received millions of dollars from the sale of the stamp. The court classified the use as commercial. The court did not find the use of the Column to be transformative. Factor One weighs against fair use.

Factor Two. What is the nature of the copyrighted work? The nature of the Column is expressive and creative. Factor Two weighs against fair use.

Factor Three. How much of the copyrighted work is used? The stamp depicted fourteen of the nineteen soldier sculptures in the Column. Factor Three weighs against fair use.

Factor Four. Does the use harm the copyright owner’s ability to market the work? The court ruled that the stamp has not and will not adversely impact Mr. Gaylord’s efforts to market derivative works of the Column. Someone seeking to take a photograph of the Column or otherwise create a derivative work would not find the stamp to be a suitable substitute for the Column itself. Factor Four favors fair use.