Gaylord v. US, Part Three, Where Copyright Provisions of Government Contract Fell Short

In Part One and Part Two of this blog series, I discussed the copyright fair use and copyright co-authorship aspects of the Gaylord v. U.S. case involving the Postal Service’s issuance of a Korean War Veterans Memorial stamp. In this final part of this three-part blog posting, I’ll discuss the government contracting aspect.

My only familiarity with this case is from my reading of the court decision. From that admittedly limited vantage point, it seems to me that the government could have avoided this situation if it had exercised more care in the drafting and oversight of the government contract with Cooper-Lecky, the general contractor for the Memorial. Instead, the government stepped on a landmine lurking in the copyright provisions of the contract.

The contract between the government and Cooper-Lecky gave the government broad rights in the Memorial including the right to use all elements of the Memorial on any other government design or construction. Such language should resolve the government’s problem with Gaylord’s copyright infringement lawsuit – except that Gaylord was not a party to the government-Cooper-Lecky contract. Cooper-Lecky granted the government all the rights Cooper-Lecky held in the Memorial. However, one cannot grant rights it doesn’t have and Cooper-Lecky evidently did not have sufficient rights in Gaylord’s work on the Column.

From the government’s perspective, Cooper-Lecky should have been contractually obligated to obtain in writing proper rights from everyone who worked on the Memorial project so that Cooper-Lecky could properly convey those rights and permissions to the government. Somewhere along the way, this process broke down. The court opinion suggests that Cooper-Lecky and Frank Gaylord did not start their working relationship with a written agreement addressing the copyright ownership of the Column. As a result, Gaylord and Cooper-Lecky disputed copyright ownership of the Column for years with those disputes finally culminating in a 1994 agreement in which Cooper-Lecky acknowledged Gaylord’s sole copyright ownership of the Column.