Gaylord v. US: Korean War Veterans Memorial on Stamp Is Not Fair Use

The Federal Circuit has ruled that the government’s use of a photograph of a government-commissioned sculpture on a postage stamp does not constitute fair use of the copyrighted sculpture, nor is the government co-owner of the copyrights. In Gaylord v. United States, ____ F.3d ____, 2010 WL 653272, No. 2009-5044 (Fed. Cir., Feb. 25, 2010), the U.S. Court of Appeals for the Federal Circuit held that the government did not have the legal right to depict the copyrighted Korean War Veterans Memorial, created by sculptor Frank Gaylord, on a postage stamp, even though the government had commissioned the work. Even though the image shown on the stamp was a photograph of the Memorial covered in snow – and the government had purchased the rights to use the photograph from the photographer – the Court found that the image was not sufficiently transformative to constitute fair use of the Memorial.

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Ryan Smith

Thomas F. Zuber

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