Gaylord v. US, Part Two, Government Is Not Co-Author of Government Commissioned War Memorial

In Part One of this blog series, I provided the background of the Gaylord v. U.S. decision. I also discussed the case’s fair use finding that the U.S. Postal Service’s issuance of a Korean War Veterans Memorial stamp was not a fair use.

In this Part Two, I’ll discuss the copyright co-authorship aspects of the case. As one of its defenses to Frank Gaylord’s lawsuit, the U.S. government claimed to be a co-author of the Column.

The Meaning of Copyright Co-Authorship

If the government qualified as a co author, it would have a right to use the Column without permission from Gaylord and there would be no infringement. You do not need a contract for the creation of a co-authorship relationship so it is possible to take on a co-author without the explicit intention of doing so. A copyrighted work qualifies as a joint work if it is a work prepared by two or more people with the intention that their contributions be merged into one inseparable work. As you might guess, the validity of a co-authorship claim is highly fact specific. The individual claiming to be a co-author must show independent copyrightable contributions and intent.

No Government Copyright Co-Authorship in Memorial

The government claimed its co-authorship through the primary contractor Cooper-Lecky and through the Korean War Veterans Memorial Advisory Board (VAB), and the Commission on Fine Arts, two government entities that worked on the Memorial. The court did not agree that the government was a co-author of the Column and found that Gaylord was the sole author of the soldier sculptures.

Instead, the court concluded that the government had merely provided Gaylord some direction and ideas which did not qualify as independent copyrightable contributions eligible for co-authorship status. For example, the VAB had suggested ethnicities and equipment to make the soldiers appear representative of those in the Korean War and Cooper-Lecky had suggested that Mr. Gaylord depict more youthful soldiers with less wind in their ponchos.

Furthermore, in a 1994 agreement with Gaylord, Cooper-Lecky acknowledged that Gaylord was the sole author of the Column of soldier sculptures.