While artist Richard Prince continues to wage his highly publicized appeal against photographer Patrick Cariou, another dispute over copyright — this one involving the federal government — has reached a milestone ruling. A Federal circuit court decided last week that the 87-year-old sculptor behind the Korean War Memorial in Washington, D.C. may be eligible to recover royalty payments from the U.S. Postal Service, which used a photograph of the memorial on stamps and related merchandise without his permission.
The long, complicated, and strangely patriotic saga stretches back to 1986, when the sculptor, Frank Gaylord, won a contest to design the memorial’s centerpiece. Gaylord, an amateur artist and a WWII veteran himself, worked for almost five years on the project, which consisted of 19 steel statues of U.S. soldiers that he titled “The Column." Shortly after the monument was unveiled, another amateur artist with ties to the military, John Alli, began shooting photographs of the memorial. He gave his favorite image, a ghostly photograph of the memorial swathed in snow, as a gift to his father, a Korean War veteran.
That’s where the story might have ended if not for the U.S. government, which decided to feature Alli’s photograph on a stamp in 2002 to commemorate the armistice of the Korean War. Though the postal service paid Alli — who had previously licensed the image to other outlets — a fee of $1,500 for use of the photograph, it failed to get permission from Gaylord. (The stamp, meanwhile, has brought in an estimated $30.2 million since its release.)
In an effort to claim a share of the revenues, Gaylord sued the government for copyright infringement in 2006. On appeal, the court ultimately sided with the sculptor, alleging that the stamp, and the image captured on it, did not sufficiently transform Gaylord’s sculpture to qualify as fair use. “Both the stamp and The Column share a common purpose: to honor veterans of the Korean War,” read Judge Moore's ruling. “Nature's decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.”
With the question of fair use decided, Gaylord’s lawyers turned their attention to damages. Last week, a Federal Circuit court threw out a lower court’s decision that Gaylord was entitled to $5,000 — the most the postal service had ever paid for an image, according to Reuters, which first reported on the case. Instead, according to the ruling, Gaylord may be entitled to up to a 10 percent royalty, his typical fee when licensing images of the sculpture. The particulars of exactly how much Gaylord is owed will be determined by a lower court at a later date.
While technical, this recent ruling does set a precedent for copyright holders suing the federal government, according to Gaylord’s lawyer, Heidi E. Harvey, of the law firm Fish & Richardson. “This decision sets a precedent for anyone — the author of software, or even a training pamphlet — whose copyrighted material was used by the government to claim a royalty if the government didn’t secure the proper rights,” she told ARTINFO.
What might this case mean for artists? “I don't have any sense that this became a marquee decision that has artists worried across the country,” said Anthony Falzone, a lecturer in law at Stanford Law School and one of the principal authors of an amicus brief supporting Alli back in 2006. “People just kind of view this as an odd case because it involve a sculpture and a postage stamp,” he said. (That didn’t stop the Andy Warhol Foundation or artists Barbara Kruger, Jonathan Monk, and Allen Ruppersberg from signing onto the amicus brief, however. All identified as “parties who care about and exercise the free expression rights that fair use protects in the visual arts and beyond," and argued that Alli's photograph constituted fair use.)
In the end, notes Harvey, courts treat questions of fair use on a case-by-case basis. Recent high profile copyright cases involving artists, such as Shepard Fairey v. the AP and Prince v. Cariou (which is currently on appeal), all deal with the question of whether an artist transformed a copyrighted image enough to qualify as an original work of art. “In all three of those cases — even ours —each of the subsequent artists added something to the work,” said Harvey. “If you're looking for a case that is going to tell you once and for all what side of the line that you're on, neither the Prince case, nor Fairey case, nor our case is going to do it.”