“Court Stamps Out Govenment’s Joint Work Copyright Claim.”
Washington D.C. is full of original works of art in the form of sculptures. One description of D.C. made by a young friend is that D.C. is a sculpture garden disguised as a town. A score of years ago, the Supreme Court issued a copyright opinion on another sculpture case, The Community for Creative NonViolence (CCNV). This opinion, Gaylord v. U.S., which issued on December 16, 2008, is consistent with CCNV.
The title of the work at issue, “The Column”, refers to a public sculpture depicting 19 Korean War soldiers in a ‘column’ formation. This sculpture forms the core of the larger Korean War Veterans Memorial (KWVM) in Washington, D.C. Frank C. Gaylord, the acknowledged artist who authored “The Column”, objected when the United States Postal Service commissioned a freelance photographer for $1,500.00 and then used that image on a commemorative stamp. The USPS sold 86.8 million 37-cent stamps bearing the image before retiring the stamp in 1998. The photographer pocketed his $1,500. Gaylord got nothing, not even a free stamp.
Gaylord sued; alleged copyright infringement; and demanded as damage 10% of the revenue of the USPS stamp sales.
The tangled facts surrounding the creation of the sculpture are pivotal in understanding this case. It is a fact pattern that reads like a nested Russian doll. An architectural firm won the contract from the American Battle Monuments Commission (ABMC) to create and install the KWVM; and, that architectural firm subcontracted the sculpture of the soldiers (19 in all) to Frank Gaylord, a self employed and well known artist. In the documentation regarding the creation of the sculpture, Gaylord demanded; was refused; and then succeeded in unimpeded ownership to the copyright in his works. Gaylord obtained numerous copyright registrations covering the sculptures of the poncho wearing foot soldiers both individually as a grouped column.
After the KWVM was installed, an amateur photographer visited the KWVM during a snowstorm and took photographs. The snow frosted images of trudging soldiers in column was licensed to the United States Postal Service for $1,500. The photographer notified the Postal Service that the permission of the artist of the sculpture would also be needed for reproduction of the image. The Postal Service contacted the ABMC who represented that it had the rights to the sculptures. No one contacted Mr. Gaylord; Mr. Gaylord did not consent.
Upon learning of the use of his work, Gaylord tried negotiating a ten percent license on the revenue of the stamp sales, and when that was refused, he sued the United States.
The United States defended stating that the Gaylord sculpture was a joint work. In reviewing the facts and logic, which were reminiscent of those of the Community for Creative Nonviolence (1988), the Court of Federal Claims found no joint authorship and that Gaylord is the sole owner of the sculptures. However, in reviewing the defense of fair use, the Court of Federal Claims found that United States Postal Service stamp was a fair use of Mr. Gaylord’s solely owned sculpture as the stamp is a transformative work, having a new and different character and expression from that of Mr. Gaylord’s sculpture. Gaylord for all his effort and for his tenacity in taking the matter to court; still gets nothing.