Copyright Law | Expert Legal Commentary
May 18, 2010
Gaylord v. US: Korean War Veterans Memorial on Stamp Is Not Fair Use
Gaylord v. United States
Tom Zuber and Ryan Smith of Zuber Lawler & Del Duca
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.
In 1986, Congress enacted legislation to build the Korean War Veterans Memorial in Washington D.C.; Cooper-Lecky Architects, P.C. was the primary contractor for the Memorial. Nationally recognized sculptor Frank Gaylord was selected as the sculptor for the Memorial, which he began working on in 1990. Gaylord sculpted 19 stainless steel statues of foot soldiers arranged in a platoon formation called “The Column.” From 1990-1995, Gaylord secured five copyrights on various versions of the sculpture; each copyright registration identifies Gaylord as the sole author of the work. The Memorial was dedicated in 1995.
In 1996, retired U.S. Marine and amateur photographer John Alli took hundreds of photos of The Column one snowy day; among them was one particularly haunting, ghost-like photo of the snow-covered steel soldiers. Alli entitled the photograph “Real Life” and intended to present it to his father, a Korean War Veteran.
In 2002, the federal government paid Alli $1,500 for the rights to use his photo on a 37-cent postage stamp. The U.S. Postal Service grossed more than $17 million from the sales of the stamp, including about $5.4 million in sales to collectors.
In 2006, Gaylord filed suit against the United States for copyright infringement in the Court of Federal Claims, which found that the government’s use of the sculpture on the stamp constituted fair use. Specifically, the Court of Federal Claims determined that the photograph had “a new and different character and expression than Mr. Gaylord’s [work]” and that the stamp was a “transformative” work. Gaylord v. U.S., 85 Fed. Cl. 59, 69 (2008). Gaylord appealed. Gaylord v. United States, ____ F.3d ____, 2010 WL 653272, No. 2009-5044 (Fed. Cir., Feb. 25, 2010).
The Depiction of the Memorial is not Fair Use
The United States Court of Appeals for the Federal Circuit disagreed and reversed the lower court’s decision. Hearing the case de novo, the Federal Circuit re-analyzed the stamp under the four fair use factors set forth in 17 U.S.C. Section 107:
1) The purpose and character of the use, including whether the use is of a commercial nature. A key question under this factor is whether the use was “transformative” of the original work, a finding that often heavily influences a court’s ultimate finding of fair use. The lower court found that the use was transformative and therefore constituted fair use.
The Federal Circuit, however, found that the use was not transformative: “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… 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.” 2010 WL 653272, *5.
The Court’s finding that the use was not transformative held great sway in its final determination that the stamp and its depiction of The Column was not protected by the Fair Use doctrine. Moreover, the fact that the postal service had grossed about $17 million from the sale of the stamp made it a commercial use. Id.
2) The nature of the copyrighted work. The nature of Gaylord’s work is expressive and creative, weighing against a finding of fair use. Id. at *6.
3) The amount and substantiality of the portion used in relation to the copyrighted work. The stamp showed 14 of Gaylord’s 19 soldier sculptures – essentially the entire subject matter of the stamp—weighing against a finding of fair use. Id.
4) The effect of the use upon the potential market for or value of the copyrighted work. The Court did find that “the stamp has not and will not adversely impact Mr. Gaylord’s efforts to market derivative works of The Column.” Id. at *7. This was the sole factor weighing in favor of a finding of fair use.
Because the Federal Circuit found that the work was not transformative and three of the four fair use factors weighed against a finding of fair use protection, the Federal Circuit held that the use was not protected.
The Government was not a Co-Author of the Work
In its defense, the government claimed that it was a co-author of The Column, and therefore it has the right to use The Column without permission from Gaylord and there is no infringement. A copyrighted work is considered a joint work if it is prepared by two or more people with the intentions that their contributions will be merged into one inseparable work. 17 U.S.C. Section 101. The party claiming co-authorship rights must show independent copyrightable contributions and intent. 2010 WL 653272, *9.
Here, the government claimed co-authorship through the contributions of Cooper-Lecky, the Korean War Veterans Memorial Advisory Board (VAB), and the Commission on Fine Arts. The Federal Circuit Court found that while the VAB and Cooper-Lecky had made some suggestions about how Gaylord might depict the soldiers, those ideas did not qualify as independent copyrightable contributions eligible for co-authorship status. Id. at *8. Moreover, a 1994 agreement between Gaylord and Cooper-Lecky acknowledged that Gaylord was the sole author of The Column. Id. at *12.
The Gaylord opinion has stunned numerous pundits who agreed with the lower court’s decision, primarily due to the Federal Circuit’s analysis of whether the image was transformative. Indeed, photographs are copyrightable due to the artistic choices of the photographer. The trial court had found that Alli had achieved a transformation of The Column through his experimentation “with angles, exposures, focal lengths, lighting conditions, as well as the time of year and day… [and he] also achieved his vision using various photographic effects and equipment.” 85 Fed. Cl. at 69.
The Federal Circuit seemed to gloss over the photographer’s creativity, focusing instead on the stamp itself and its purpose and character, an effort that has left some copyright experts dumbfounded. But there may be more to this decision. First, it should be noted that Gaylord also sued Alli in 2006, eventually reaching a settlement that would pay Gaylord 10% of the sales of the print. So issues regarding Alli’s liability for copyright infringement were privately resolved.
Moreover, the Federal Circuit seems to take the opportunity in the Gaylord opinion to re-emphasize the importance of commercial end-users to obtain full and proper releases from all relevant parties before using a copyrighted image. The opinion specifically contrasts Gaylord’s work on The Column with the $17 million the government grossed from the stamp without ever seeking the consent of Gaylord – an uncomfortable financial dichotomy that may have tapped the nerve in the court.
Some fear that the Gaylord decision will have a chilling effect on creative expression that incorporates the copyrighted work of others. But the lesson for commercial end-users is to get all appropriate releases before using anyone else’s creative expression. If it’s not clear who needs to provide you with releases, or if you are having difficulty obtaining permission, consult with an experienced copyright attorney.
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About the Authors
Image Credit: Frank Gaylord/U.S. Postal Service-issued Postage Stamp