Postal Service Could Be On The Hook For Millions For Daring To Memorialize The Korean War Memorial
from the it-should-have-been-$0 dept
A few years back, we wrote about how a sculptor who had been contracted by the US government to create the Korean War Memorial in Washington DC was suing the US Postal Service because it had released a stamp using a photograph of the Memorial. There were all sorts of issues with this, starting with the fact that the US government should never commission a monument in which it does not also get the copyright. Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single photographer artist has control over it? Why would the government allow this? The second problem was that this seemed like a classic case of fair use. The photo was clearly transformative from the original work, where most of the power of the photo is in other elements beyond the statue (the snow, the lighting, etc.). Unfortunately, however, the appeals court for the federal circuit (CAFC) made one of its all too typical bizarre rulings and decided that the photo was infringing. As we noted at the time, it rejected the transformative nature of the photo by claiming those were “nature’s choices,” which would effectively eliminate all nature photography from being covered by copyright.
That said, the case has continued, as the follow up fight was about how much the sculptor, Frank Gaylord, should get. The district court looked at typical licensing deals from the US Postal Service and realized they usually pay a couple thousand dollars. The highest amount it could find was $5,000, so they awarded him that. Gaylord appealed, asking for 10% of all revenue from the stamp, which he estimated would be around $3 million on the $30.2 million in revenue made already. That’s a pretty big difference. CAFC has once again sided with him saying that the lower court was wrong to just award him $5,000, without taking into consideration how much Gaylord might have wanted to license the work for in the first place. The lower court will now have to reconsider, and the US taxpayer may have to pay this guy a ton of money yet again.
So, can we convince the federal government of a rather simple idea going forward: if you have someone create a memorial or statue or piece of artwork for public display, part of the deal is they put the whole thing into the public domain. If they don’t like it, find another artist. The fact that this work is not in the public domain is a travesty. The fact that the photo is not considered fair use on the sculpture in the first place is a travesty. The fact that he may end up getting another batch of money for this is a travesty. And all of it could have been avoided if someone (anyone) in the US government realized ahead of time that artwork created for public display should belong to the public.
Filed Under: cafc, frank gaylord, korean war memorial, photography, transformative work, usps
Comments on “Postal Service Could Be On The Hook For Millions For Daring To Memorialize The Korean War Memorial”
This has me thoroughly confused
How does the sculptor have copyright on a photograph? Is he also the photographer?
I really don’t get this….
‘The fact that this work is not in the public domain is a travesty. The fact that the photo is not considered fair use on the sculpture in the first place is a travesty. The fact that he may end up getting another batch of money for this is a travesty’
the biggest travesty of all is the fact that copyright exists in the first place. scrap the whole damn thing and let’s get on with life!
Flippit
Whoa there, if the copyright crowd gets ahold of what you’ve said and decides to turn it around…
We might just end up with a “Scrap all life, let’s preserve copyright!” campaign. Do Not Want.
So what do we do now?
Does eminent domain ever apply to copyright and other intellectual? Can the government step in and say, “You know what, some bean counter make a mistake but we need to put the rights to this Public monument in the Public Domain. Here’s a million dollars; never come back.”
Or does this whole thing need to get ripped out of the ground post-haste and melted down into collectible coins?
In either case I think every taxpayer in the country should go take a deuce on Frank Gaylord’s front lawn.
Flippit
Hey, life is overrated, ya know?
gaylord, a great big pr$ck
Gaylord, I think I speak for all of us, including the men on that memorial that you are shaming, when I call you a pr$ck. They didn’t die so that you could screw the public. Did Gaylord get permission from each and every soldiers family to use their name on the monument? wheres their compensation? Are the courts brain dead or in on the dead. oh, and why have you not issued DMCA for every other use on the web….
pointless to trust in justice when money is involved
Once again we have a US court siding in favor of capitalism vs. common sense, of greed vs. fair use, and no matter what, the taxpayer loses, again.
Yeah we got our monument, but apparently we don’t own it.
The percentage this guy is asking for….is enough for me, to trashcan the stamps, knock his work into the sea and go hire someone else to replace the sculpture.
There, nobody gets anything asshole, go home, and try to scam some other country. That’s what you get for involving a lawyer in what should have been a cut and dry purchase, just to gouge the public satisfy your greed.
Makes no sense
It’s on public display. It was commissioned to be on public display. That means we’re allowed to look at it, photograph it, paint it and remember it. If the artist doesn’t like it (and, apparently, has the power to object) then, well, remove it! Move it to a secure, inaccessible building where the artist can sit and stare at it alone.
If the artist owns the copyright and doesn’t like it being photographed, the government is just going to have to remove it, cover it up or bury it.
Sounds like a good idea. Commission a new monument from someone less greedy.
prior art
exactly what part of the monument itself was unique? statues? the uniforms that he didn’t design? the location he doesnt own? can I charge him for putting his materials into my picture?
So what happens..
If we just knock the original statue down and build another one, with some tiny Omega-like scrawl on the base to make it unique, and take a photo of that?
It's on public land
And he’s claiming ownership of the copyright, tell him to get it the hell off government property and charge him daily until he does.
Idiotic
The idea that the US would end up having to pay for something it paid for already shows you how stupid our government can be. This is simply amazing. This work, the entire thing, should be in the public domain.
This has me thoroughly confused
He is claiming that his copyright on the sculpture also covers photographs of the sculpture. It is an insane thought process and CAFC is stupid for siding with it. Of course CAFC is one of the worst courts in the history of the US.
Quick question.. Is the US Postal service fully owned and operated by the USG like say IRS, FBI, etc?
If the above is a YES, then the actual stamp is not being used for commercial purposes since the actual enterprise (USPS) whether they are creating money from the stamp (profit) or not is irrelevant. They are a non-profit government entity.
Also Mike, your sentence of “”Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single photographer has control over it?” is wrong for the same reasons.
Anyone who photographs the site actually retains the copyright in their OWN photos and would only have to pay a minimal fee if they use the artwork photographed for commercial purposes, even then the copyright in the photo still retains with the photographer and the artwork is just the ‘subject’ (if that) of that new copyrighted work transformed onto an image.
The Sydney Opera House corporation and other nutters that own artwork and hate the idea of them not controlling everything hate this concept. Tuff!
*waits for the trolls who don’t understand the legal concept of commercial usage to bleat inanities as per normal*
It’s stuff like this that ruins vacations. I have a cousin that’s on vacation in Amsterdam and she posted in her blog, “So there wont be many pics posted from Amsterdam…the things worth taking a picture of aren’t allowed and the things you are allowed to take a picture of arent worth it.”
If it’s outside and you don’t have to pay admission to see it, you should be able to take pictures, paint, draw, take impressions, or whatever. Copyright has it’s uses, but over the years, there have been too many restrictive changes made that it’s actually hurting what it’s supposed to protect these days.
This seems reasonable to me. Can you imagine how many sales of this statue Gaylord must have lost due to the wide distribution of those stamps? I heard he only managed to sell one of it!
For a WWII veteran, I would expect more patriotism from Frank Gaylord. Seems like he has found what his government can do for him: fund a lavish retirement.
But all Gaylord is doing is promoting job growth through protecting his copyright! The RIAA/MPAA have been telling us this for years!
By protecting his copyright and suing an the Postal Service, which is already having financial problems, he’ll be helping to create “job growth” by forcing more layoffs… (I’m sure the MPAA/RIAA believe this. Negative job growth is still “job growth” but perhaps not in the right direction =P)
Makes no sense
Get new monument and leave a big gaping hole where this one was with a plaque stating
” This monument has been removed due to copyright infringement at the request of the owner Frank Gaylord.”
Gaylord. Gay lord. Right.
So many problems with this
First off, how does he retain the copyright in the first place? Isn’t a commissioned work a textbook example of “work done for hire”?
Second, even if that wasn’t true, how does any copyright exist? Government work financed by taxpayer money always goes into the public domain with no copyright.
So it’s legally impossible twice over for this guy to hold a copyright in the first place. Seems to me the post office needs to file a copyright fraud counterclaim…
Re:
“and would only have to pay a minimal fee if they use the artwork photographed for commercial purposes”
If that’s true, why is the artist suing for a percentage of profits rather than, say, the owed fee plus court costs? Why is profits the base amount used to determine the amount he’s suing for, rather than the fee he was owed or some multiple there of? He wasn’t entitled to any of that profit before, if that was the case.
pointless to trust in justice when money is involved
Didn’t you read the EULA when you installed the monument?
Yeah, as far as I’m concerned, burn the stamps, fine the guy until he removes his property from public land, commission a new monument and new stamps. It’s probably cheaper than the millions the guy wants.
Re:
Always look on the bright side of life….. or at least for the sound bites.
1. Discover the economy has a net job loss over the past year.
2. Give information to politician
3. Have politician spin the loss into a gain. It’s not a net loss, it’s a negative net gain in jobs created!
4. Get a journalist to make a sensation headline through sound bite. “Officials state the economy has a ‘Net gain in jobs created!'”
5. Voila! Problem solved!
In this example there is also no ??? step towards profit, as the politician has already lined his pocket multiple times. =P
One way to solve the problem
1. Secretly draft Frank Gaylord into the U.S. Army and secretly airdrop him into North Korea alone to “break the truce and finish the war”. (Secretly, so the U.S. Government can disavow any foreknowledge of his “lone wolf” strategy, while openly saying his long and tireless work on the Korean War Memorial must have sent him over the proverbial edge.)
2. Sell U.S. postage stamps depicting this “last desperate misguided act” by Frank Gaylord, and out of the profits from said new stamps pay his heirs for the copyright infringing act the U.S. Postal Service committed in printing and selling the old ones.
3. Any money left over from the sales of the “new” misguided Frank Gaylord memorial stamp = Profit!
Re:
Without having read the actual lodgement, The guy is having an attack of the entitlements.. and thinks the world owes him more than it should. (In other words he’s trying to state that profits are commercial in nature and therefore his tights were infringed under commercial purposes.. problem is copyright doesn’t work like that. That’s why we have licensing.. not profit share)
Though I’m not sure the publicity the guy is getting or about to get will be for the better. he might find out his entitlement to a public flogging of his mores and character is what is really going to happen
Re:
read my comment above this..
Amsterdam has those signs everywhere, and they mean nothing and have no legal justification. The only justification they might have is within a private palace, though they CANNOT stop you taking the photo, or delete it afterwards etc. only remove you from the premises.
Replace it
I think he should feel honored they wanted to put it on a stamp. He was alread paid in gthe first place, why offer him an additional $5000, I don’t think he deserves even an additional five cents. The Government ought to tear the thing down and commission a replacement from someone who understands what a Memorial is for.
Re:
Also Mike, your sentence of “”Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single photographer has control over it?” is wrong for the same reasons.
That was a typo. I meant to say the artist who created the sculpture has control over it, not the photographer. Fixed.
So many problems with this
Second, even if that wasn’t true, how does any copyright exist? Government work financed by taxpayer money always goes into the public domain with no copyright.
It should, but that only counts in the case of someone who is working for the government. When I was a government contractor, many moons ago, we were paid by the government to do stuff, and we gave them what we produced on their dime, but then we turned around and sold the same product to others without a blink. We owned what we produced, and saw the government as an initial investor in our success.
And I hated the thought of it, and routinely argued against it, but that is the way it was. It is the same reason why universities funded with taxpayer money, or medical companies funded with taxpayer money, can turn around and sell their research for top dollar.
Re: So many problems with this
Well, then he can go use the design and make another monument. Do you see that actually happening? I don’t, either.
The exclusivity rights should have ended the moment he sold the work of art. It’s insane to be paid every time something you sold changes hands or is exploited in the least bit. Nintendo owns the patents to my old Gameboy Advance. That doesn’t mean that I have to pay them when I sell it or that I can’t sell photos of it. Imagine Andy Warhol nowadays – Campbell would claim it wasn’t a parody and thus following the same reason as Frank did, they’d sue for ‘derivative works’.
What utter nonsense. Asking an already ailing Postal Service to pay large sums of money for putting a MEMORIAL on a stamp. God forbid that we actually make memorials to, you know, remember important things.
Even in this idiocracy, I can’t believe this would survive on appeal. I hope the PO will bring full legal force down upon this ahole, whatever it takes. But I fear they will cave, even though the creep hasn’t the tiniest thread of an argument.
Makes no sense
^^^^^^THIS….A Thousand times this^^^^^^
The commission of this monument was to memorialize the sacrifices made by our Service Members during the Koren War. This Frank Gaylor should be in the running for Douche Bag of the year award(yes I know there are many who are likely more deserving). As for the Fed…this is the typical myopic manner in which they handle many things. They see a short term goal, but never think of the long term ramifications. Way to go Frank “Douche Bag” Gaylord and way to fail US Gov.
If this guy still controls the rights for the statue, and is using it for commercial purposes, then we should be charging him rent for the public space that his statue is occupying. That’s prime real estate his work is occupying, so back rent could be as much as, oh…. about $3 million. Isn’t that a coincidence.
If he objects then we can return the statue to him. We’ll gladly deliver it to his house. From a helicopter. While still several hundred feet above- nobody said we had to land first before hitting the release switch..
gaylord, a great big pr$ck
thank you
Copyright its REALLY important… until it bites them in the ass.
Re:
Actually, I think that postage stamps sell at a loss otherwise the post office wouldn’t be losing money. So perhaps the percentage of the profits is a loss and Frank Gaylord owes the Post Office some money?
After all the price you pay for the stamp is for the stamp itself plus the delivery of a piece of mail.
I wonder whether the artist got permission to use the military uniforms and items, such as the helmet before he built the sculpture. Seems the designer of the helmet could now sue him?
Yet again? He has never been paid anything!
Yet again? He has never been paid anything!
This has me thoroughly confused
You wouldn’t. In this country you can’t steal the product of someone’s imagination that has been copyrighted.
This has me thoroughly confused
Yet again? He has never been paid anything!
gaylord, a great big pr$ck
I assume you fought in the Battle Of The Buldge like he did! If not “shut up”!
Teach him a lesson
Gaylord owns the copyright, but who owns the sculpture? Could they demolish it and replace it with something else which is in the public domain? I realize that would be controversial, but might help in the long run if this crap continues. It might also be cheaper.
Re:
I would imagine he was paid to make it
If he owns it, then give it back to him. Dump it in his driveway! I’m sure he’ll regret all the trouble he’s caused soon enough, and he’ll be calling wanting the mailmen to come and get it again.
So many problems with this
Copyright law provides that an original work of authorship prepared by an officer or employee of the US Government as a part of his/her official duties is not preserved under copyright law.
Specifically, 17 USC 101 defines such a work as follows:
A ?work of the United States Government? is a work prepared by an officer or employee of the United States Government as part of that person?s official duties.
Whenever a work falls within the definition above, 17 USC 105 provides that:
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
The original creator/author of the work not being either an officer or employee of the US Government, the work does not fall under the definition of a “work of the United States Government”. Accordingly, the work is not excluded from preservation under US copyright law.
Why isn’t this a “work for hire”? Such works are also defined in 17 USC 101, and under these facts the doctrine does not apply. First, the creator/author is not an employee, and, second, the work does not fall under one or more of the various classes of work to which the doctrine does apply.
The fact it is not a “work for hire” is not a troublesome matter because parties to a contract can always insert terms into the contract providing the rights and responsibilities of the parties with respect to a work to which copyright pertains. The problem under the facts in this case is that the contract between the USG and the original contractor (the creator/author was given a subcontract by the contractor to design and sculpt the work) was not well thought out and did not contain provisions transferring all right and title in the work to the US Government, or at the very least a broad license (fully paid up, irrevocable, etc., etc.) for US use of the work under copyright law.
BTW, as a general rule the use of federal appropriations to pay for contract work does not provide the government with title to the associated patent/trademark/copyright/etc. rights. This is likewise true with non-federal contracts involving solely private parties.
Of course, many are confused, and oftentimes downright indignant, when they discover that federal contracts typically leave the ownership of patents and copyrights with a party performing the contract. There are a myriad of perfectly valid business and financially prudent reasons why this is so. Hence, long ago it was decided as a matter of US policy that federal contracts would not recite USG ownership of the rights, but would recite licensing terms affording the USG all it needs to go about its business without worry that a rights holder will show up at its doorstep demanding compensation. Sadly, there are lawyers in the USG’s employ who understand these issues and can easily make sure they are appropriately addressed in procurement contracts. I say “sadly” precisely because these lawyers are typically shut out of contract negotiations by other lawyers (who know diddly about this law) engaging in a turf battle that keeps the others in the dark about what is going on.
Teach him a lesson
The sculpture that was delivered under the original procurement contract to the USG is owned by the USG, which is free to do with it as it pleases.
So many problems with this
“…but then we turned around and sold the same product to others without a blink.”
Which is but one of many reasons why patents and copyrights generally reside with contractors; i.e., the more they sell to others the lower the procurement costs paid by the USG on subsequent purchases.
So many problems with this
“…but then we turned around and sold the same product to others without a blink.”
Which is but one of many reasons why patents and copyrights generally reside with contractors; i.e., the more they sell to others the lower the procurement costs paid by the USG on subsequent purchases.
Flippit
clicked ‘insightful’.
would have clicked ‘funny’ but past evidence supports the idea that yes, they Are that stupid…
contact info
Comment away…
http://www.frankgaylordsculpture.com/
Contact Information
Frank C. Gaylord
2844 Rte. 14
Williamstown, VT 05679
For Business Inquiries Call John Triano (802)485-9636 or e-mail at trianoj@gmail.com
gaylord, a great big pr$ck
So, if you are not a direct participant to an experience you are not entitled to an opinion?
gaylord, a great big pr$ck
Yes, I’ve heard that combat experience tends to transfer well to copyright litigation. Why would anyone ever bother questioning the motives and actions of someone so clearly qualified in this field?
Or do you think that fighting in a war gives someone carte blanche to profit off of other soldiers in whatever way he sees fit? It doesn’t. I don’t care if he personally shot Hitler, that’s no reason he should be able to ransom a war memorial for several million dollars. This is wrong.
this monument was placed on public property…
so royalties (his share) minus rent (our share)…
he owe’s about 3 mil!
Re:
ROFL! Is that the copyright equivalent of getting his panties in a twist?
Okay, I know it was a typo, but it made me laugh!
Re:
The spin:
The USPO, by adhering to strict copyright laws, has contributed over $3 million to the private sector, and several million to the legal sector – promoting American job growth and adding to the American economy.
And that is how copyright saves jobs and helps the economy. :/
So many problems with this
Very unethical.
Just because it is what people do, doesn’t make it right.
Time for a new monument
If he prevails in this case, the old one this fuckwit “created” should be dynamited, and a new one created and put in its place, only this time the contract should specify that the sculptor has zero rights. They do own the actual sculpture, so if they dynamite it, no problems. I’d pay money to watch a video of the demolition, split-screened with his face reacting to it.
So many problems with this
But you shouldn’t argue against retaining rights to intellectual property that is developed under a government contract. The contract says what it says, and it should be followed. If it does not sell all the rights, the legal presumption is that this is reflected in a lower contract price and that both sides benefit.
Many transactions with the government are purely commercial, and we should not encourage the great beast to abuse its dominant bargaining position in every single transaction.
For me what makes the difference in this case is that it is a public monument of national significance. Whatever you may think of war, if soldiers are to be honored at all, they must be honored in a way that is transcendent — that establishes commonality or solidarity. There really isn’t any other way to do it. They can’t receive royalties.
The artist is uniquely positioned to convey this to the public — after all, he is the artist. I don’t see how he possibly can do this while suing for royalties. He damages the monument and undermines the honor of being its creator.
On the other hand, if the original contract was simply clear in giving him contingencies on future income as part of his compensation, then — as long it was not exorbitant, and that could easily cover figures like 50,000 or 100,000, couldn’t it — no-one would have objected or even noticed.
What is really shaking people is the public display of cupidity, not the payment or the rights. In that sense this article is really not about property rights at all, but other kinds of obligations.
This brings me to the question that is bothering others– since when do building designers or their customers even *have* intellectual property rights in photographs of their buildings? It seems that these rights are either ignored 99% of the time or nonexistent. Am I missing some obvious cases where such rights either are supported in law or should be?
Really??
My 5 year old can take a picture…big deal. The us government allowed him to have copyrights. Still they want to have it both ways. When you make money on an artist’s work you have an obligation to pay for that…people without a grasp on reality see it differently.
Really??
My 5 year old can take a picture…big deal. The us government allowed him to have copyrights. Still they want to have it both ways. When you make money on an artist’s work you have an obligation to pay for that…people without a grasp on reality see it differently.
Really??
My 5 year old can take a picture…big deal. The us government allowed him to have copyrights. Still they want to have it both ways. When you make money on an artist’s work you have an obligation to pay for that…people without a grasp on reality see it differently.