Sculptor Frank Gaylord wins copyright infringement appeal vs. US

In 1990, after having been selected by a national contest, Frank Gaylord began work on a sculpture that would become the Korean War Veterans Memorial in Washington D.C.  Know as ‘The Column’, the final design consists of 19 stainless steel statues representing a platoon of foot soldiers. From 1990-1995, Gaylord secured 5 copyrights on various iterations of the sculpture. Although he was amenable to suggestions during the creative process, including that from the sponsor of the Memorial, Cooper-Lecky Architects, P.C. (Cooper-Lecky), each registration lists Gaylord as the sole author of the work. The Memorial was dedicated in 1995.

In January 1996, photographer John Alli took a photograph of the memorial following a snowstorm. The photograph, titled ‘Real Life’ was intended as a retirement gift for his father, a veteran of the Korean War. Mr. Alli would go on to secure the ‘rights’ to publish prints of the photograph from Cooper-Lecky. Alli was eventually sued by Gaylord in 2006, settling for 10% of sales of the print.

In 2002, the Postal Service selected Mr. Alli’s photograph for a 37-cent stamp commemorating the 50th anniversary of the armistice of the Korean War. The Postal Service, without securing any rights from Gaylord,  produced approximately 86.8 million stamps (over $20 million in sales) before retiring it in 2005.

On July 25, 2006, Gaylord sued the United States for copyright infringement, however, the Court of Federal Claims concluded that the government’s use of The Column was fair use. Noting that the photograph “having a new and different character and expression than Mr. Gaylord’s,” the Court found that the stamp was a ‘transformative’ work.

On appeal, the United States Court of Appeals for the Federal Circuit disagreed. Hearing the case de novo, the Court re-explored the following Fair Use factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In response to the finding of ‘transformative use’, the Court cited the Second Circuit’s decision in Blanch v. Koons [2006] the court reasoned’

[T]he stamp does not transform the character of The Column. Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.

The Court of Appeals also found that the receipt of over $20 million from the sale of the stamp clearly constituted a commercial purpose. Further, the Court noted that the The Column “constitutes the focus—essentially the entire subject matter—of the stamp,” a fact not mitigated by the snow or muted coloring.

The Court of Appeals agreed only that “the stamp has not and will not adversely impact Mr. Gaylord’s efforts to market derivative works of The Column” before remanding the case for a hearing on damages.

The entire opinion is here and further commentary here.