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Fair use? US stamp featuring photo of monument nets sculptor $650,000

By Richard Butler on Sep 29, 2013 at 11:00 GMT

Heard the one about the sculptor awarded over half a million dollars because a stamp was made including a war memorial he'd designed? At first that may sound surprising, but reading the court's judgement (and the rejections of the various defenses put forward by the US Postal Service), is an informative lesson about copyright and fair use.

The case itself has been rumbling through the court system since 2006, when Frank Gaylord, sculptor of the National Korean War Veterans Memorial in Washington D.C. accused the US Postal Service of copyright infringement. The US Postal Service had created a postage stamp based on a photograph of the monument by photographer John Alli.

Initially the Postal Service defended itself on the basis of co-ownership of copyright (having contributed to the design), exemption under the Architectural Works Copyright Protection Act, and fair use. A 2008 court case dismissed the first two defenses but accepted a claim of fair use.

However, this 'fair use' defense (which aims to ensure copyright isn't used to unduly hold back science and the arts), was rejected by an appeal court in 2010. Both the original acceptance of the fair use defense and its rejection hinge on a case-by-case analysis of the factors set out in US copyright law:

  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.

The 2010 ruling looks at each of these in turn, with much of the rejection of the fair use defense hinging on the first two elements.

The argument that Alli's photography is a transformative work (it changes the purpose or character of the original), isn't helped by the Postal Service entitling the stamp 'Korean War Veterans Memorial' - suggesting it's a depiction of Gaylord's work, rather than a original work based on it.

And, while an earlier court had ordered the US Postal Service to pay Gaylord just $5,000 (based on that being the largest amount it had ever spent on licensing a photograph), the latest finding is that the Postal Service instead owes $684,845. Rather than being a punitive amount, it's based on Gaylord's normal rates - 10% of the fee the creator of a derivative work is making (a rate Alli agreed to for any subsequent use of his photograph).

Furthermore, that 10% rate has only been levied on the the proportion of stamps that the Postal Service believes have been bought by collectors (and thus are considered pure profit). The remainder of the award is a 10% royalty on related merchandise the Postal Service sold and an interest payment to make up for the delay in payment while the court cases have rumbled on.

What do you think?

The 2010 ruling, which is well worth reading, makes clear why the court believes Gaylord's copyright has been infringed.

At which point does the amount awarded (based on the Postal Service's roughly $17.3m income from stamps and merchandise based on his work) seem unreasonable, or is it an equitable response to someone's work being used for profit?

Comments

Total comments: 266
12
Buttons252
By Buttons252 (6 months ago)

Everyone is talking about what is legal, but why aren't we talking about the moral principle of right and wrong?

In my opinion if i purchase a sculpture, a car, a magazine I should be able to do whatever I please with it because I own it. In my opinion it is no longer his creation when he sells it. If he leased it to the government then I could see this being an issue.

0 upvotes
Encomiast
By Encomiast (6 months ago)

The government can do what it like with sculpture. Just like you can do what you like with the actual car or magazine.

But, do you think if you buy a Honda Civic or a copy of GQ you should be able to reproduce those and sell them yourself? What you're talking about is ownership of tangible property, this case is about intellectual property. I don't think anyone believes that if they buy a magazine they should be able to republish the articles and photos.

0 upvotes
Autographhound1
By Autographhound1 (6 months ago)

I'm really getting tired of this garbage. It's why every other TV show I watch has to have huge parts of it blurred out. Everything hanging on someone's wall... every T-Shirt they wear. Even the stupid logo on the steering wheel of a car. Enough is enough. It's insane that a reality TV show has to blur out a painting on a wall which is seen for seconds and not part of the storyline all because of this copyright nonsense. It's clear in all those shows that the artists work just happens to be there.... it's not being used to promote the show, gain more viewers, or make 2 cents on. Yet the blur machine has to run at full speed week after week to keep up with the need. End the insanity.

Comment edited 28 seconds after posting
3 upvotes
MikeInMI
By MikeInMI (6 months ago)

This is bizarre. The federal government commissions a sculpture to be placed in a public place, and a picture of it is subject to copyright laws?

It isn't like the USPS is selling artwork. The picture of the sculpture is only incidental to the stamp, not a primary reason people purchase it.

2 upvotes
Encomiast
By Encomiast (6 months ago)

Really? That's like saying a photo on the cover of a magazine is only incident to the magazine and therefor photographs don't need to be licensed. After all most people buy a magazine for what's inside it. The unique designs and images on stamps are the ONLY reason collectors buy them and collectors are a source of serious money for the USPS. They need to have a license for the use. Whether it should be acquired during the sculpture commission process or independently is a matter of debate, but not the need to have it.

0 upvotes
Sirandar
By Sirandar (6 months ago)

There are 2 camps

Camp 1 will agree because they want creative works to generate as much income as possible in as many ways as possible.

Camp 2 doesn't want to pay directly or indirectly for this.

Basically the US gov made a stupid mistake paying 0.8 million for a public monument and not getting the rights and the artist is cashing in on it.

I would have been interesting to follow the flow of money all though this monument project to see how it flowed and into who's pocket but we will never know that.

Judging from the picture at least the artist is talented .... sometimes we pay 0.8 million for an eyesore.

1 upvote
HubertChen
By HubertChen (6 months ago)

Thanks Sirandar for this summary

may I add a Camp 3: This should not have gone to court!
Camp 3 agrees in principle on Camp 1. The agreement said that the Artist is still copyright holder. If going to court, copyright law must be uphold, or other Artists lose the only power they have to protect their intellectual property. However in this case the intent for the monument was for use in public domain and using a photograph of it is using it as it was intended in spirit when the whole project was started. That the Artist is now fighting his employer will make those even more hesitating who considered to contract an Artist. This simply makes life harder for those Artists fighting to make a living. More scared patrons = less earning. So Camp three is this should never has gone to court. Who plays on this level has the privilege and responsibility to be a role-model and show how to successfully build Win-Win relationships.

Comment edited 2 times, last edit 1 minute after posting
1 upvote
Marcin 3M
By Marcin 3M (6 months ago)

Well, he might put his sculpture to the cloud, making the income stream more stable. We all should do.
Myself I'm on the market for the print technology allowing prints to blank after a year. To have the image for the next year, it will be re-printed with extra fee, for the next year.

0 upvotes
HubertChen
By HubertChen (6 months ago)

The facts make the intention super clear, that the intended use of the Memorial was Public domain:
1) The Artist Gaylord was paid 0.8 Million USD to create the war memorial for a public park
2) The Artist was contracted directly by US Congress

Leaders lead society by example. The Congress leading by example on how to make law (agreements) to create piece and understanding. The Artists lead by example on how to understand intention and express intention.

Example of Congress: Not capable to manage paperwork necessary to run a public park. Giving away 0.8 Mio USD for Art to be displayed in a public Park and still not having purchased the copyrights is embarrassingly stupid. Also not capable to have a friendly relationship with the Artist.

Example of the Artist: Greedy Slimy Snake. Even he already got paid 0.8 Mio USD and his work is used exactly as intended by his customer, he found a legal way to make something very clear becoming very confusing, complicating the future of others.

Comment edited 48 seconds after posting
3 upvotes
Encomiast
By Encomiast (6 months ago)

Which facts, specifically, are you referring to? The only facts that would indicate that the artwork was intended to be in the public domain would be language along the lines of, "artist agrees that all rights to artwork including copyright shall become public property…" etc.

As far as I can tell, there are no facts of that nature.

For god's sake people, what is so hard about letting the artist profit from his/her work when others are using it commercially? It's truly unsettling that a forum dedicated to an art form is so hostile to the idea that a sculptor, who has worked his whole life to earn a commission like this, might retain the rights to his work. It's what we ALL should aspire to.

2 upvotes
HubertChen
By HubertChen (6 months ago)

@ Encomiast

Facts I am referring to that the intended use of the Art was for public domain:
1) The Memorial is placed in a public Park. It is common sense that everything inside a public park is indeed public domain
2) The Artist was contracted directly by US Congress. When the Congress is doing it, it is usually solely for the purpose of creating Art for use in the public domain.

I think these facts are not for dispute. To see the memorial, you need to enter the national park and you can see the signs that you are entering a national park. You may also google it.

Your second statement:
Nobody here has intention to take away earnings from a hard working Artist. Quite the opposite. But this is not what is happening here. It is not that the US government stole creative work from Gaylord. Gaylord was in fact paid eight hundred thousands USD for his work by the government to put it into public domain. His actions are making it harder for Artists like you to get contracts.

2 upvotes
HubertChen
By HubertChen (6 months ago)

@Enconmiast
The difference between agreement by the letter and by intent

By the letter:
You are referring to the letter of agreement. As it appears the government was stupid and signed an agreement with the Artist where he still remained sole copyright to the Artwork. But in this case clearly the letter of the agreement is in conflict with the intent of the agreement. This is why all parties involved thought they can take a picture without commission. They thought it is OK and inline with the intent. None of the parties ever had the intention to steal from the party.

Intent:
I am referring to the intent. The Spirit. The core idea. The heart and soul of the agreement. It is about two parties really understand each. They set out to make a Win-Win project and then continue to behave causing Win for the other party.

Win-Win works great. People working happy together. As a result there are usually many follow up projects

I hope this is something you feel is right?

2 upvotes
Encomiast
By Encomiast (6 months ago)

@HubertChen,

The core idea, as you call it, was to create a sculpture that would become part of the memorial. The sculpture itself was intended to be public. It was and is still.

But putting the intellectual property into the public domain is an entirely different (and very unusual thing). You have no evidence that this was the intent. People who commission artwork and people who take these commissions are very familiar with copyright. It's a stretch to say that they 'intended' to place it in the public domain but somehow left out the verbiage.

It's NOT the way it is usually done. Unless you have evidence to the contrary — for instance years of personal experience in the field of public art — you are doing artists a disservice by claiming to understand the intent of the parties involved.

cont…

0 upvotes
Encomiast
By Encomiast (6 months ago)

Here's a PDF from American's for the Arts with some info for you about creating public art:
http://www.americansforthearts.org/pdf/networks/pan/becker_communities.pdf

Here's the salient section for this discussion:
"90 percent of public art programs say that the artists that they commission retain the copyright of their work. When the copyright is not maintained by the artists, most often it becomes the property of the public art program. A few programs report that they share a joint copyright with the artists."

90 percent. AKA almost all. So if you want to assume the intent, it's a much safer bet to assume that the letter and the intent of the agreement are the same because it agrees with overwhelming common practice.

1 upvote
HubertChen
By HubertChen (6 months ago)

Dear Enconmiast,

Thank you for your detailed and very precise response. I agree with all what you said. I apologize that my previous writing was not clear. I meant the intent of the customer, not the intent from the Artist. Customer being in this case the Congress and the extended customer being the public.

I have been on the selling and contracting end of such intellectual property license agreements for the past 25 years, so you can assume I am sufficiently experienced.

In all this time to anybody who was new to the method that the Artist / photographer remained owner of the intellectual property was not intuitive to the customer and in many cases once the customer understood the idea, he felt cheated.

For ourselves we eventually gave up using this license model, as we considered it more important to keep the customer happy and consider us reasonable and for that reason come back and give us repetitive business.

Comment edited 7 minutes after posting
0 upvotes
HubertChen
By HubertChen (6 months ago)

...
You can see in responses in this place that for half of the people here this whole thing is very upsetting. Those are the once inexperienced with intellectual property license agreements and they feel it to be counter intuitive and nonsensical.

The other half instead are professionals and they ask: What do you want, this is how it is done.

My point is that it is perhaps time to change the way it is done. To make the standard way of doing business intuitive and the way a paying customer would expect, even and especially he is inexperienced. This would make for a more friendly and happy life for all participants.

We changed it for us, and we and our customers are certainly more happy.

When I was in my twenties I had a major lawsuit every year ( which I usually won). Now I am in my forties and I have not had a lawsuit in the last 10 years and I am a much, much happier person and so are my customers, staying with me for 10 years plus.

I hope this makes more sense now?

Comment edited 2 minutes after posting
0 upvotes
rfsIII
By rfsIII (6 months ago)

Peoople get too caught up in what's legal. Why can't people just show good manners and ask before they take something.
You don't go into your neighbor's garage to borrow a rake without asking do you? So why would you borrow his creation without asking.
All this could have been prevented with just a phone call to Gaylord or his representative. There is no need to overcomplicate this—unless you're a serial infringer and make your living that way.

And of course it's a reasonable amount. You're paying for a portion of Gaylord's creativity, which like all creativity, is priceless.

Comment edited 2 minutes after posting
0 upvotes
Roland Karlsson
By Roland Karlsson (6 months ago)

The thing is that both the memorial and the stamps are owned by the same entity, the state. So - I do not think "take" is the right verb to use.

Moreover, when doing Copyright infringements you never take anything. So ... "take" is never the right verb.

Moreover, as USPS have said - they did not think that there was any problem. They were told by the photographer to speak with the company that made the memorial, the one Gaylord worked for. And they did, and they got permission.

The main mistake, as far as I understand, was made by this company. They missed that Gaylord was the sole Copyright holder.

So - no one has made anything deliberately complicated or wrong. It was a mistake. And only Gaylord knew that it was a mistake. No one has deliberately cheated him.

1 upvote
mausta
By mausta (6 months ago)

It is pretty clear.
IF the Government had purchased the copyright to this sculpture then the artist would not have any claim.
Likewise if someone commissioned an artist (you) to make a work of art, then printed millions of copies of it and made over 17 million dollars, WITHOUT PURCHASING the copyright from you, don't you think they would owe you some of that money?
The reason there is copyright protection is because of instances such as this!
The artist is not to blame, he is exercising his (copy) rights to his original creation. Again if the govt. had purchased these rights from the artist he would not have the copy"RIGHT" anymore!!!! Don't bash the artist, he apparently still holds the copyright.
All of this bitching and moaning about how we can't take pictures of anything because someone else made it is absurd. Copyright law defines what is and what is not protected. If you are profiting from your photography better consult the copyright law or better yet a copyright lawyer.

3 upvotes
massimogori
By massimogori (6 months ago)

Agree: let's shift the focus on Copyright and IP laws and team up to make them less absurd. The target is to promote creativity and innovation, not to block them.

1 upvote
lensez
By lensez (6 months ago)

@mausta

Good job bringing this mish-mash into perspective. You nailed it.

0 upvotes
sh10453
By sh10453 (6 months ago)

Exactly.
Clearly (based on the court ruling) the contract with the government kept the copyrights with the artist. So it was for a one-time-use (the memorial display).

If the government reps were smart enough at the time of the contract, they would have insisted on ownership of the copyrights (perhaps for a little more money).
However, some artists / originators of work would not accept contracts that take the copyrights from them.

Now imagine if you took pictures of a wedding, gave the pictures to the bride & groom, and pocketed your fee.
Then the newly weds decide to publish and sell copies of a wedding photography coffee-table book from these images.
Do you think they have the right to do so if the original contract did not explicitly say that the fee includes the transfer of all copyrights to them?

Next time you do a shoot for a fee, make sure you have a clause that says "one-time-use", and designates you as the copyrights owner (unless you were paid for the copyrights).

0 upvotes
HubertChen
By HubertChen (6 months ago)

What is sh10453 says is all technically correct and it is a way to make more money and unfortunately it is also a way of doing business which is common place. You do this, you will have more money short term.

You do this, you will upset lots of people. Because the only way to get this money is through litigation, as it is counter intuitive.

Inexperienced customers will sign your agreement and you will need to wait and watch them if they give you a chance to litigate them for more money due to copyright infringement.

Experienced customers will not sign with you such agreements. Experienced customers are the onee who would bring repeated business and are the ones you actually would want to attract.

Last but not least, simply think on the counter intuitive aspect. It is not helping your relationships if you make agreement where you make people believe they get a) and you know you only want to give b) and later fight your customers when using a)

0 upvotes
Spectro
By Spectro (6 months ago)

Sculptor shouldn't be paid for this. He was paid commissioned by the government for this work. If anybody get paid would be the government. Like architects don't get paid for pictures of building they work on. That rights belong to the owner.

3 upvotes
Encomiast
By Encomiast (6 months ago)

What if someone wants to build another building based on the architect's design? Should the architect be paid for that?

What if someone wants to create a line of doll houses replicating the architect's work, should the architect be able to control that?

What if someone wants to sell a book of do-it-yourself architectural plans and wants to include this architect's work?

etc.

Comment edited 2 times, last edit 2 minutes after posting
1 upvote
mausta
By mausta (6 months ago)

If it is a direct and blatant copy of the architect's work, then yes probably should be compensated. It depends on who owns the copyright, and also what the copyright law dictates. Laws typically are written in an explicit manner, so as to clarify rights and infringements on said rights. It has nothing to do with opinion or what you think is fair. It has to do with the letter of the law and whether or not it conforms to the constitution.

0 upvotes
Spectro
By Spectro (6 months ago)

Taking a picture is not like having floor plan drawings being built. If they used the same drawings or floor plans (from the previous building that is stamp and signed) yes, but if another architect designed something similar plan drawing alike then no. Their is no patent or copyright on what style you use. Can you take a picture of a building and sell it (print or book), people do it all the time. Can the owner come after you probably. Can you get the floor plan layout for a book, no (you need to contact the owner then the owner will contact the architect. you can agree from there)

Comment edited 2 minutes after posting
0 upvotes
peevee1
By peevee1 (6 months ago)

If the government commissioned the work, shouldn't it own copyright on it (including on derivative works)?

2 upvotes
Encomiast
By Encomiast (6 months ago)

Only if that's the way copyright worked. But it isn't, at least not in the US.

0 upvotes
Roland Karlsson
By Roland Karlsson (6 months ago)

I am a programmer. And I can tell you that this is exactly how it works for programs, even in US.

0 upvotes
anthony mazzeri
By anthony mazzeri (7 months ago)

I'm wondering now if Gaylord actually used photograph reference for his sculpture as per the Iwo Jima monument? Or did he get life models to pose for him? So it could be a print/stamp of a photo... of a sculpture... of a photo...

0 upvotes
Pera Peric
By Pera Peric (6 months ago)

DITO. Joe Rosenthal iconic photograph is translated to Marine Corps Memorial, aka Iwo Jima memorial. USPS used Rosenthal photo on stamps as well, but Joe being modes did not demand money. When asked about the photo, he would say "I took the picture, the Marines took Iwo Jima."

It appears that Mr, Gaylord comment about monument will be: "Comrades died in Korea, I took the money in Washington, a lots of money, the greed is good". To make matter worse people in that monument sketched and use in Korean war monument are men he served with during World War II, including William A. Callaway and John Erdman. So now those man or they families can ask for commercial use of they likens in commercial products.

If USPS do not go to Supreme Court and successfully appeal this going to be very problematic for a photographers and publishers. Thank you Mr. Gaylord, no more postcards, posters or book with pictures of monuments in public spaces because paying 10% royalties to sculptor.

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Now - let us turn things around. As far as I understand from what I have read, the photographer Alli has put a fair amount of work into making the photograph. This work has now generated an extra income to Mr Gaylord. An income he otherwise would not have had. Right?

So - should not Gaylord now owe Mr Alli some money?

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

I have now read the entire 2010 ruling document. It is a thorough motivation and gives interesting insights in Copyright law thinking. But ... I do not agree. A photo of a statue is not a statue. And a photo of several statues is not the same thing as those statues. I have looked at google images on the memorial monument, and the image on the stamp is very unique. It is clearly a derivative work, a piece of art in itself. The memorial monument is on a field with several things spread around. The image on the stamp is a more closed composition, giving a stronger feeling of nearness. The snow also adds a very important dimension. IMNSHO the verdict is very surprising, at best.

3 upvotes
Encomiast
By Encomiast (7 months ago)

"It is clearly a derivative work"

I don't think anyone disagrees with that. Now that you've read through the ruling, I suggest you breeze through Title 17 USC where you'll find that one of the exclusive rights given to the owner of a copyright is the right:

"to prepare derivative works based upon the copyrighted work"
(17 USC § 106)

It can be a work of art on its own and still be an infringement.

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

As I read the 2010 document, the court did not think it a derivative work. And the motivation being that it had the same intention as the original monument, even the same name.

0 upvotes
dstanton
By dstanton (7 months ago)

Seriously? ...

...whats next a copyright/trademark © ™ painted on every momument and building in the USA claiming private rights to public building and momuments??.

I guess I need to stop taking pictures or I own a ton of money to those folks.

3 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

It all depends on if you make money from the pictures :)

But, otherwise you have a point. How on earth shall anyone know which public monuments that are free to photo? If it is a national monument, the reasonable assumption is that photographing is free.

1 upvote
Encomiast
By Encomiast (7 months ago)

For the record: copyright law in the US has an exception for photographs of buildings viewable from public spaces. It's not infringement to photograph a building (although there have been some attempts to use Trademark law to control images).

See: 17 USC § 120 (a) Pictorial Representations Permitted

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

That is reasonable. Would be impossible to take many pictures of a town without having at least one building being main subject.

Strange that not public statues and other decorations follow the same law.

2 upvotes
psn
By psn (7 months ago)

Did the USPS appeal this to the supreme court at all? I suppose it's probably cheaper to pay the award than to pay the lawyers for an appeal. Also, it sounds to me their lawyers are pretty weak...

0 upvotes
jkoch2
By jkoch2 (7 months ago)

The USPS has dedicated many, many stamps to monuments, landmarks, and well-known pieces of public art over the years. If it rolls over on this case, opportunists everywhere will go on a roll. Attorneys will awaken the dead, if need be, to recruit plaintifs. The US will simply have to cease using stamp illustrations where the risks exist. Henceforth, nothing but neutered stamps with a zebra code that confirms postage.

3 upvotes
anthony mazzeri
By anthony mazzeri (7 months ago)

I don't know how legal these two notions would be - 1: They would have sold those $17 million worth of stamps regardless because people buy stamps to mail their stuff and not because of the image on them, therefore the USPS did not derive that income from his work so he shouldn't get a cut of it. They just do as many public postal services around the world do and use their stamps as mini-billboards to promote public services or events etc. And 2: He was commissioned (and paid quite handsomely) by the public to create a public monument. The very premise of the word 'public' means owned/shared by all and so precludes private ownership as being its very antithesis, and so there was never any 'privately owned copyright' in the first place for him to retain.

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

It is a national monument. It is reasonable to have a national monument on a stamp. Its like Statue of Liberty or Niagara falls.

It is also reasonable that if you are paid to make a national monument, that monument is then a property of the state without any more obligations to the artist. IMHO if the artist do not agree to that, someone else shall make the monument. Sure, Copyright is Copyright. But with Copyright follows the possibility to declare it for free usage.

Now, this Gaylord seems more interested in money than fame and the US state. So ... maybe he is not worthy of making a national monument? Or?

6 upvotes
Encomiast
By Encomiast (7 months ago)

That would be a fine arrangement if the price you are paid includes all possible future uses. Most people and organizations don't want to do this because they would be paying for rights they might never use. Buyouts are expensive for this reason.

Generally you negotiate these things. If the government wanted a buyout, I'm sure there was a price that would work had a price. But they didn't. So if they now want additional rights after the fact, they need to renegotiate.

Reading through these comments, it's no surprise that artists have trouble staying in business. You're a bunch of pussies ready to capitulate to the state even when the law gives you tools like contracts and copyright. If you're running a business, then run a business goddammit and stand up for yourself.

4 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Do you know the details behind the arrangement between Gaylord and the government?

0 upvotes
Encomiast
By Encomiast (7 months ago)

I know the government didn't secure rights to publish the work on a stamp and didn't obtain a work-for-hire agreement. That much is obvious.

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

That is very strange in my book. How can the government have a national monument they do not own. How on earth shall anyone know that this is the case. Maybe some warning signs?

1 upvote
Encomiast
By Encomiast (7 months ago)

They DO own the monument. They just don't own the i.p rights to the work. It's the same way you can own a book without owning the rights to republish it. Or the way you can own a CD without the rights to broadcast the music.

4 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

I was not clear enough.

How can there be national monuments where the state dont have the i.p. rights?

Maybe it is common. But it sounds just strange to me.

1 upvote
Encomiast
By Encomiast (7 months ago)

It may seem strange, but I guarantee when the US government hires contractors to invent fighter jets it doesn't own all the patents that GE or General Dynamics registers.

The point you're missing is that any respectable artist is going to charge a LOT more for a buyout. It doesn't make sense for the government to spend that money unless they know they will use the rights. In most cases it would just be waste.

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

Hmmm .. I am not sure you are right. I would think the state has some means of convincing the artist to sell his rights at a reasonable price. More often than not, many artists are more or less dependent on what they can sell to the state.

0 upvotes
Reg Ister
By Reg Ister (7 months ago)

Funny to see that DPreview is aware of copyright, while the posters on this forum own the copyright on their written content, but DPreview is not respecting it (and not giving their postal adress if one wants to complain, while their owner, Amazon, is far more correct in those matters.)

DPREVIEW-Posters: Be aware, DPREVIEW DOES NOT RESPECT YOUR COPYRIGHT.

0 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

In what way do they not respect our Copyright?

4 upvotes
MarkLand
By MarkLand (7 months ago)

It is helpful to know that they estimated the 'collector' sales at roughly $5.4mm and although my understanding is that most stamp collectors collect every stamp (in other words, the artistic value is not the primary driver in the purchase, rather it's the fact that it's on a stamp) so the settlement is generous to the artist. Looks like justice was done though.

1 upvote
Cultured Vulture
By Cultured Vulture (7 months ago)

I guess in future when monuments and such are commisioned they will need to be sure that the contract is specific that it is work for hire and that the artist has no future claim to the work in any way. He or she gets paid for the work and the nation gets the monument. If they don't agree to the terms, find another person.

4 upvotes
Encomiast
By Encomiast (7 months ago)

That's the way it's working now—the artist gets paid, the nation gets a monument. If then nation needs a monument AND a stamp, I'm sure that could have been arranged, but it wasn't.

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

It seems to be a bad idea to fix problems while moving along. I do not think nations should make only partly agreements. And if they do I think they should have an obligation to set up warning texts regarding the limited rights to take photos of the national monument. That is what you do in picture galleries when you enter, if there are any limitations.

1 upvote
Encomiast
By Encomiast (7 months ago)

Limiting photographs in galleries is an interesting issue. Often museums try to exert power over work that should by all accounts be in the public domain. They often limit photography even when copyright is not an issue and try to prevent photography to protect gift shop sales.

As far as fixing problems while moving along, this is normally the best use of money. Why pay for licensing you may never use? The problem isn't that the government didn't secure the rights up front. If they did that for every piece they commissioned, they would waste a lot of money.

The system works when people do the right thing: license the use they need and not the use they don't. If it turns out later that they want to further exploit the work, then deal with it. But, as this ruling clearly shows, don't license for one use and then proceed to find other, profitable uses for the work. That's dumb (and expensive).

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

So - the state buys a monument and is then not allowed to have that monument on a stamp. Maybe that is economically favourable, but I would not call it reasonable.

1 upvote
Encomiast
By Encomiast (6 months ago)

Suggesting that the state should purchase all rights for every art work it commissions just in case they may need them is like suggesting that the state should buy every hotel rather than just pay for the room. After all, they may want to stay in the hotel again.

0 upvotes
Roland Karlsson
By Roland Karlsson (6 months ago)

I think we haver slightly different views. Nothing wrong with that. Maybe it is because I live in Sweden. I do not think we have this commercial view on national monuments. I think that if some artist gets paid to make a monument, then he/she gets paid for doing it ... and thats it. It is take it or leave it for the artist. Maybe this makes the work more expensive, or not - I do not know. But it sure simplifies.

0 upvotes
Raist3d
By Raist3d (7 months ago)

I really wonder how many of the people commenting read the court case PDF from top to bottom.

To those who may know about legal matters: Why is Gaylord's work not considered "work for hire" for Lecky? Does anyone really know? If it is, then Lecky does own the (C) - but given the case I can only imagine there's a reason why it wasn't considered like that.

0 upvotes
Encomiast
By Encomiast (7 months ago)

The reason the sculpture is not considered work for hire is that work-for-hire arrangements need to be explicitly made in writing if you are an actual employee. Gaylord was a independent contractor, not an employee of Cooper-Lecky.

0 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Hmmmm ... I assume you meant that "need to be explicitly made in writing if you NOT are an employee". Of course. Very clumsy of Cooper-Lecky to hire Gaylord and not get that down in writing, in that case.

0 upvotes
Encomiast
By Encomiast (7 months ago)

Yes, that's a typo. Thanks.

0 upvotes
Plastek
By Plastek (7 months ago)

Yet another proof that US "justice" system is a joke.
Nothing new here, really.

1 upvote
Jim Radcliffe
By Jim Radcliffe (7 months ago)

Silly lawsuit. Every tourist that photographs that sculpture is also violating his copyright.. might as well sue them as well. Seriously, he's just greedy and looking for easy money.

4 upvotes
jkoch2
By jkoch2 (7 months ago)

The USPS is a pretty huge, soft target. Gaylord's advistor knew by heart the counsel of Willie Sutton: "that's where the money is." However, given the employee pension plan deficit, the difference will have to come from higher fees, taxes, or cutbacks. Untill recently, every US penny had an image of the Lincoln Memorial, with an itty-bitty image of Daniel Chester French's sculpture of the president grieving over the Civil War. French's descendents might have a stronger case that someone was "making money" from the work without paying additional royalty. Moolah!

Comment edited 1 minute after posting
0 upvotes
Raist3d
By Raist3d (7 months ago)

Why it is exactly just greedy and looking for a lawsuit? Did you read the court case PDF? There's also a difference between photographing something and photographing something making money off it.

Comment edited 5 minutes after posting
1 upvote
Jim Radcliffe
By Jim Radcliffe (7 months ago)

@Raiste3d... when was the last time the Postal Service made money?

2 upvotes
Raist3d
By Raist3d (7 months ago)

They apparently made 17+ million dollars off these stamps. Whether they did a net profit with all their other initiatives or not is irrelevant to the case.

Why is that question even relevant?

Comment edited 34 seconds after posting
2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

He got 10% of the income from stamps and merchandise that was sold for collector purposes. That is not 17+ million, that is 7- million. The rest of the stamps (10+ million) was sold as stamps, i.e. to cover costs for delivering mail.

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

There is NO difference between photographing something and photographing something to make money regarding Copyright infringement. They are both equally illegal. The only difference is monetary. It is only worth while to sue someone if you can claim a monetary loss.

0 upvotes
TTMartin
By TTMartin (7 months ago)

So if a corporation commissions a sculpture for in front of their corporate headquarters Then uses a picture of their corporate headquarter with prominent display of the sculpture in their ads. They owe royalties to the sculptor?

Or a museum of modern art that features a likeness of one of the works they own in an ad for the museum, do they owe a royalty to the artist?

Comment edited 2 times, last edit 8 minutes after posting
0 upvotes
Cyrille Berger
By Cyrille Berger (7 months ago)

It depends of the contract that the corporation has passed with the artist. I would assume that most corporation would buy the art and the rights at the same time.

Usually museum own the art and the rights. And they tend to want to restrict the use of photography of their own artwork.

4 upvotes
JordanAT
By JordanAT (7 months ago)

Gosh, I hope Gayloard doesn't find out that the photos here (http://www.nps.gov/kowa/planyourvisit/permits.htm) are being used without payment to him.

0 upvotes
TTMartin
By TTMartin (7 months ago)

I think the US Govt should be charging the sculptor for using Federal Lands the memorial is on to conduct a commercial business.

8 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Actually. Quite resonable request.

5 upvotes
DotCom Editor
By DotCom Editor (7 months ago)

But, if an agency of the U.S. government originally contracted with him to create the sculpture as a work for hire, he would have been paid his fee and he would be due no more money. The problem here is that not all facts are in evidence to know.

3 upvotes
jkoch2
By jkoch2 (7 months ago)

All told, the USPS does not really "make money" on stamps or mail delivery in general. The conmemorative stamp gave Gaylord a "free ride" publicity-wise for his work and should pay a fee.

2 upvotes
Raist3d
By Raist3d (7 months ago)

DotCom- that's what I am trying to understand. Why his work was not considered "work for hire" so he retained (C).

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Yepp - the most interesting bit here is regarding what the original contract said regarding Gaylord´s rights to the monument after delivery. Did the government miss the important part regarding ownership?

Comment edited 35 seconds after posting
0 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Maybe this is some kind of infringement, I am not sure. One thing I am sure about though is that the amount sevenhundred thousand dollars is just ridicoulus.

2 upvotes
danieljcox
By danieljcox (7 months ago)

Without the artist creating this image, there is no image. Why should he not get paid for his vision and creativity? Would anybody have bought this stamp had it just been a blank, white stamp without any sort of art? No! They bought it because it had something of interest that the artist created. The artist should be paid. Without the art the artist created, there is no stamp to sell. People who create good ideas or good art deserve to be paid.

Daniel J. Cox
www.naturalexposures.com

Comment edited 56 seconds after posting
7 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Are you talking about the photographer?

0 upvotes
groucher
By groucher (7 months ago)

Why should artists be paid multiple times for their creations?

In common with most us here I would imagine, throughout my working life I was paid just once for my work. Now I sell photographic prints and make my money by creating the print and frame.

This artist made an obscene amount of money for doing next to nothing. The copyright laws are nothing more than legalised theft and should be revised.

4 upvotes
Zdman
By Zdman (7 months ago)

@groucher. Every time a song is played on the radio the copyright holder gets paid. Every time a book is sold (not second had) they get paid. Every print of a paiting or public viewing of a movie (or purchase of a CD). Why? Because each of these things takes a considerably amount of effort to create and that creation must be protected. Who do you think spent more time on their creation the sculptor or the photographer? The former quite likely a thousandfold and you don't think he deserves to get paid a portion of all the money someone made from his work?

7 upvotes
aggressor
By aggressor (7 months ago)

@Zdman: "Why? Because each of these things takes a considerably amount of effort to create..." - according to this definition, anything that takes considerable amount of effort to create must be reworded. And that's just dumb.

2 upvotes
Zdman
By Zdman (7 months ago)

Rewarded if you make money from it. The post office made 17million from it. I don't think anyone would be complaining if they hadn't made any money. The fact that someone can make millions off anothers hard work and effort without compensating them and they should be happy with that is even dumber.

Comment edited 2 minutes after posting
6 upvotes
JordanAT
By JordanAT (7 months ago)

The US Postal service is losing money - no profit has been realized. The US Government paid Gayload $775,000 to purchase the design of the sculptures, and the sculptures have been erected on US Government property at US Government expense. You would think that the US Government, of which the US Postal Service is a(n independant) subsidiary would have the rights to use the likeness in works. I wonder if the artist is paid royalties for the use of the images on the National Park Service website and he gets 10% of the operating expenses of the park (which could be argued is the "admission" paid by US taxpayers for visiting and viewing his sculpture)

2 upvotes
groucher
By groucher (7 months ago)

Zdman - artists should get paid for providing the original artwork or, in the case of musicians, for first edition recordings (i.e. first CD pressings) and for live performance. I don't see any justification for paying royalties on songs written 40 years ago when they are played on the radio or issued on some new media.

0 upvotes
GaryW
By GaryW (7 months ago)

Yeah, the USPS probably lost money, if you want to look at it that way. Even if they were to make a slight profit, it wasn't because that this particular photo was all that compelling, it was because people wanted stamps to mail a birthday card or whatever.

Should the sculptor get paid for the use of his work? Are photographers going to have to avoid photographing any public sculpture? Maybe any monument, building.... Hey, that was someone else's work! They deserve a cut. I already see notices on some tickets for certain venues that photography is for personal use only and you'd have to get special permission for commercial use -- I think that's fair enough if you have to buy a ticket to enter property, but if you're on "public" ground, that should be different.

1 upvote
Lyle Aldridge
By Lyle Aldridge (7 months ago)

"Would anybody have bought this stamp had it just been a blank, white stamp without any sort of art? No!"

Actually, yes. Millions of people made no artistic choice whatsoever in buying this stamp. They just paid their 37 cents for whatever stamp the counter worker handed to them. (Note that the amount stated as payments by collectors was for all stamps, not this stamp.)

In my opinion, the result is still correct, but the analysis by the court was flawed. In looking at the first fair use factor, the court says that both the sculpture and the stamp have the same purpose - "to honor veterans of the Korean War" - and that the stamp has no "further purpose." I guess the obvious gets overlooked - the stamp's primary purpose is to prove payment of postage, not to honor anyone.

2 upvotes
Encomiast
By Encomiast (7 months ago)

groucher said: "This artist made an obscene amount of money for doing next to nothing"

Next to nothing? Really?

He gained insight into his subject by serving 17th Airborne Division during World War II earning the Bronze Star.

Then he worked as a sculptor for forty years starting with tombstones and working continuously to gain a position where he would have enough respect to earn a commission like this.

If you think this is nothing, I suggest you go grab a hunk of metal and show us how easy it is to both create the work and earn the commission.

2 upvotes
Encomiast
By Encomiast (7 months ago)

groucher also said: "I don't see any justification for paying royalties on songs written 40 years ago when they are played on the radio or issued on some new media."

You do understand that someone is making money off this, right? Your argument then is that it's okay for the radio station or the owners of this 'new media' to exploit the artwork and make a profit, but the artist should be left in the cold.

That makes no sense at all. If an artist can create something that becomes a continual source of profit, they should do everything they can to hold on to a piece of the pie. It's too hard to make a living as an artist already without giving away the shop.

2 upvotes
Cjar
By Cjar (7 months ago)

The argument that people bought this stamp because of his work is very shaky.
Granted, some vets may want this.
Collectors want to complete a collection, even if the stamp was plain white.

Then there are the 99% who just want a stamp that will get the letter where it needs to go.

1 upvote
aggressor
By aggressor (6 months ago)

@Zdman : "someone can make millions off anothers hard work" - always amazed me how this purely Communist argumentation somehow feels at home among US public. You don't argue that factory workers are entitled to factory owner profits because of their "hard work", do you? Because according to Communist doctrine, this is exactly what happens here too: "someone is making millions off others hard work". The point is, this artist placed his sculpture in the public place. And in a free society, one should be able to take pictures (and make money from those pictures) of anything located in a public place. How hard it was to create is simply irrelevant.

0 upvotes
massimogori
By massimogori (7 months ago)

There is an ill approach to intellectual property and copyright. Originally, it was aimed at fostering creativity and progress. Now, it is only about protection of status quo. I heard US industrialists willing to buy "IP" and that struck me. You hire smart people, you buy technologies, but you cannot shrink termeverything down to legal terms, it's an industrial and creative suicide.
To get back to the arts, once upon the time a so called derivative work was an expression of genius. Now it's an offence.
No wonder then that you can see people trying to exploit the oddities of the system, like in this case.

6 upvotes
JadedGamer
By JadedGamer (6 months ago)

Yes; this is the reason that out-of-copyright plays like Romeo and Juliet are known to everyone as part of the cultural heritage, while only those that work in the industry know of most plays made in the last 40 years. Copyright these days serves to protect IP industry assets, not works of art.

0 upvotes
smafdy
By smafdy (7 months ago)

By Kim Letkeman (1 hour ago)

"Seriously twisted logic. A photograph of a work of art is like a photograph of a model, you may not sell it for profit without permission. Period. Fair use comes into play when you write an article for educational purposes, not when you sell expensive likenesses to collectors."
_____________

I think your comment is untrue.

I can take a photo of anyone who steps in front of my lens, in any venue where photography is allowed, and can sell prints, and in many cases, use the image editorially, without permission from anyone.

The Paparazzi have made an industry of doing that very thing.

What I cannot do, is to use the image to promote a product or service, without permission. I cannot us it as advertising.

4 upvotes
KariIceland
By KariIceland (7 months ago)

There is a difference between celebrities and regular people, you are NOT allowed to sell prints of regular people, if they discover you have, prepare for a massive lawsuit

2 upvotes
Bali_Mirage
By Bali_Mirage (7 months ago)

"There is a difference between celebrities and regular people, you are NOT allowed to sell prints of regular people, if they discover you have, prepare for a massive lawsuit"

I think you might be mistaken about that.

http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_50171.htm

Comment edited 2 minutes after posting
5 upvotes
joe6pack
By joe6pack (7 months ago)

Wedding photographers had better check all their photos in their business webpage and make sure there is no modern arts in the background. Sculptures, fountains, wood works, gates, floral arrangements, buildings, gardens, furnishes, ...

4 upvotes
spqr_ca
By spqr_ca (7 months ago)

You miss the mark and clearly don't understand the judgement. The stamp was directly derivative (heck, the writing on it clearly stated so) and was not the incidental appearance of something that is not the subject of the photo. This is very key to the case.

3 upvotes
jadot
By jadot (7 months ago)

Wrong. Model release, contracts, & a whole load of permissions and interests make your statement void.
The venue hires it's space and a bride and groom pay to use the space. The venue has a contract with their client. Photography is expected and the photographer rarely, (if at all) sells photographs outside of that contract, even if it was a viable or profitable concern, which is unlikely.
If a wedding photographer photographs a venue and any artefacts within outside of a wedding per se, then it is very probable that the venue has employed the photographer to promote their facility, and would in any case be renumerated for that particular commission.
If the photographer walks into a venue and photographs a model dressed as a bride without the permission of the venue as a styled or fashion shoot, then the venue may well have something to say about it. This doesn't happen.
Your suggestion doesn't really bear relation to the article, and suggests you don't know what you're talking about.

4 upvotes
joe6pack
By joe6pack (7 months ago)

So you think every venue, every sculpture, every building, every piece of modern art taken by professional photographer to tell a story has signed a contract in advance?

0 upvotes
smafdy
By smafdy (7 months ago)

This is BS.

Did the sculptor put the snow on his sculpture? No. The environment, itself changed the entire nature of the photo.

As for the caption. it is just that — a caption.

I can't draw a picture of a Mustang without Ford suing me for copyright infringement, now?

As for the monument in question, it is a 3 dimensional work. A photograph, OTOH, is a 2D representation, and in now way, shape, or form, a "copy." In fact, it is impossible, as a matter of basic physics, for a photograph to copy anything that wasn't already 2 dimensional, in the first place.

Additionally, and as an aside, I have visited this monument, and feel the sculpture compares unfavorably to those which surround it. The work looks hurried and of fairly low quality. Gaylord has milked the taxpayer, twice.

Comment edited 2 minutes after posting
7 upvotes
88SAL
By 88SAL (7 months ago)

Oh Hush,

Artists deserve to be paid for the work they produce, any profit made from their work afterwards means they are entitled to the appreciation value of their work (well 10% or whatever of the on sell). This is mainly to protect abd care for emerging artist who sell work cheaply then attract a greater value later. Society wants art and public features by artists but cannot stomach paying them their fair rate. If the post office had engaged him upfront properly, they would have likely got of lightly and squarely

Your slandering of the artists style and his technique is your opinion, however your opinion does not effect his credibility. A naieve style can be just as effective, especially admist a sea of look alike sculptures in these memorial parks.

3 upvotes
Mr Ed M
By Mr Ed M (7 months ago)

Stating how you feel about something is not slander.
And since ir is writing it would be libel, not, slander anyway.

3 upvotes
shoevarek
By shoevarek (7 months ago)

I find that reasoning flawed. Why should artists be specially protected? Noone forced them to sell their work cheaply. They could demand high price and potentially face less or no buyers. If they consciously accepted lower price they should live with that like every other grown up human being.

Regarding the issue of USPS paying the legal costs. I would hope few things happen:

Person(s) responsible for issuing stamps without fully checking legal ramifications (if they are found guilty of negligence) should pay consequences

If sculpture was erected using public money so should person(s) who did not ensure it can be used by goverment agences without any limits

The artist should be blacklisted from any other public art spending. If he bites the hand that feeds him let him find another mecenas.

2 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

Yepp - I assume Mr Gaylord is no longer welcome to do any sculpturing for the state.

0 upvotes
JadedGamer
By JadedGamer (6 months ago)

This notion that artists deserve payment shows that artists have no clue about business. No, nobody has any duty to pay an artist for his work, there is no "deserving" independent of the quality of the work as is implied: he needs to sell it by making it desirable to a paying customer like any other business. Or like in this case, sell his skills on commission.

0 upvotes
jsandjs
By jsandjs (7 months ago)

Did Gaylord sue GOD since HE dumped snow on his work and thus made Alli's photo distorted as well as the stamp?

4 upvotes
Jacques Cornell
By Jacques Cornell (7 months ago)

Just one example of why it's important for photographers to support respect for copyrights.

http://blogs.nppa.org/advocacy/2012/07/13/a-strong-example-of-why-copyright-matters/

1 upvote
Roland Karlsson
By Roland Karlsson (7 months ago)

@Jacques. The image of the gay couple is not a good example of Copyright infringement. It was the persons in the image that got hurt, and not the photographer. So, the gay persons could sue, but for totally different reasons than Copyright law. I am not good enough at English to know what that law could be called.

1 upvote
DaSigmaGuy
By DaSigmaGuy (7 months ago)

This is a total miscarriage of justice in my book because the Copyright of a work belongs solely to the Photographer, in this case John Alli, and no one else. A photographer can licence his work out for a fee but as the creator of the work he will always retain his original Copyright rights. If he dies the Copyright dies with him and subsequently anyone will have right to use his work for whatever use. If anyone should be paid for the infringement then it is John Alli, unless of course he is dead, in which case Gaylord should get nothing at all.

4 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

Great! Can I take some photographs of your photographs and sell them? I would be, after all, the Photographer, in your definition.

13 upvotes
sensibill
By sensibill (7 months ago)

It's an artist rendition of a photograph of a memorial. Not a photograph of a photograph.

At some point, you have to tell yourself to walk slowly away from analogizing everything. Just define it as what it is, not 'akin' to something to bolster a weak argument.

5 upvotes
Kim Letkeman
By Kim Letkeman (7 months ago)

Seriously twisted logic. A photograph of a work of art is like a photograph of a model, you may not sell it for profit without permission. Period. Fair use comes into play when you write an article for educational purposes, not when you sell expensive likenesses to collectors.

9 upvotes
Raist3d
By Raist3d (7 months ago)

That doesn't make sense at all. Richard Prince must love you though.

0 upvotes
Lin Evans
By Lin Evans (7 months ago)

Hi Kim,
But what defines "work of art?" That in itself is a serious question. In such situation, one could make the case that any building or man-made structure could be so defined. For example, take the Eiffel Tower and the photographic restrictions. Yet, we find a copy of this in Las Vegas, Nevada. Do you think they paid a license fee to France or to the family of the designer? I honestly don't know, but this type thing can get quite convoluted.

0 upvotes
SterlingBjorndahl
By SterlingBjorndahl (6 months ago)

@Lin: Copyrights expire after a certain time.

0 upvotes
ozgoldman
By ozgoldman (7 months ago)

The one thing that is obvious about this judgement is that copyright law is a complete and utter mess globally.

7 upvotes
Roland Karlsson
By Roland Karlsson (7 months ago)

That is absolutely true.

Originally Copyright was invented by Queen Anne to protect the written word. She did not like that print makers bought texts from authors and then never printed them.

So - she issued a law that forbade authors to sell their right for 14 years. The right to the copy was therefore impossible to transfer to a print maker.

So, Copyright was initially a method for spreading culture.

Today it is the other way around, a method for limiting spreading of culture. And the winner is generally big companies.

1 upvote
JadedGamer
By JadedGamer (6 months ago)

Copyright used to be an agreement between printers (or in effect their guild) that the Crown took over. I wonder what had happened had it remained a private affair (instead of law) when the guilds gave way to the free market...

0 upvotes
mister_roboto
By mister_roboto (7 months ago)

Koons Vs. Rogers redux
http://en.wikipedia.org/wiki/Rogers_v._Koons

0 upvotes
Bali_Mirage
By Bali_Mirage (7 months ago)

I wonder if the sculptor used a photograph as a model for his sculpture.......

edit.......checked wikipedia........the sculptures were based on sketches of men he served with in WWII.

http://en.wikipedia.org/wiki/Frank_Gaylord

Comment edited 3 minutes after posting
2 upvotes
Mr Ed M
By Mr Ed M (7 months ago)

I wonder if Gaylord has model releases from the soldiers who's likeness the sculptures were based?

2 upvotes
GradyPhilpott
By GradyPhilpott (7 months ago)

An organization I belong to that restores former military aircraft has trademarked each one so that no one can take pictures and sell those photographs for a profit or use them in any other way without permission.

I don't know where the manufacturers come in, if in fact any of them are still in business.

0 upvotes
zkz5
By zkz5 (7 months ago)

You're restoring the aircraft to their original condition?

0 upvotes
Kim Letkeman
By Kim Letkeman (7 months ago)

I wonder if that would really be defensible ... there aircraft's likenesses are published in books all over the place ... but perhaps it is akin to the copyright of the nighttime lighting of the Eiffel Tower ... the "because we said so" doctrine I think it is :-)

2 upvotes
Franka T.L.
By Franka T.L. (7 months ago)

What Grady mean is trademarking those specific aircraft, not the general aircraft type. This is pretty common.

0 upvotes
Doctor_K
By Doctor_K (7 months ago)

In my opinion the law goes too far in extending copyright. Allowing a copyright holder to own anyone else's work in a different media is too much. If the copy was in the same media then the story would be different and an infringement would have taken place. Otherwise this will infringe on my rights to depict the item in another way.

3 upvotes
mister_roboto
By mister_roboto (7 months ago)

If I make paintings of your photos- that's okay? What about, say- making a digital painting out of one of your photos?

2 upvotes
mr moonlight
By mr moonlight (7 months ago)

I paint a painting, you snap a photo of it and then sell it?

3 upvotes
sensibill
By sensibill (7 months ago)

What gives with people complicating this with nonsense analogies? It's not a photo of a painting. It's a 'painting' of a photograph of a war memorial.

You don't need the analogue when the actual situation is simple enough.

2 upvotes
Franka T.L.
By Franka T.L. (7 months ago)

Its not the act of making a photo of the sculpture, its making use of those photo in a commercial ( and thus not fair use any more ) context. USPS is selling f\those for a profit you know

5 upvotes
KariIceland
By KariIceland (7 months ago)

To be honest i am not happy with the verdict, what the verdict should be to have justice served: all the profits made should go to the artist AND. The postal office should get a hefty fine ro discourage this kind of behaviour.

4 upvotes
absentaneous
By absentaneous (7 months ago)

in some way it of course make sense but on the other hand I wonder where would be fair to draw the line. for example, I come across a great looking sports car on the street and I take a picture of it and turn it into a poster and I sell copies of it. does that mean the company which designed and constructed the car can sue me? by that logic one couldn't possible take a picture of something man made or designed and use it commercially without permission without getting sued.

5 upvotes
M Lammerse
By M Lammerse (7 months ago)

It becomes even more funnier, when you change 'sportscar' into (planted) forest...or no wait, a tree.

1 upvote
Valentinian
By Valentinian (7 months ago)

if you want to use a ferrari and a fashion model in a spot to sell whatever, you must pay the model and seek permission to have a ferrari in the spot.

Comment edited 50 seconds after posting
3 upvotes
absentaneous
By absentaneous (7 months ago)

@valentinian,

how about seek permission from the firm who designed the clothes the model was wearing? or maybe seek permission from the company which designed the tires the ferrari is using or maybe seek permission also from the company which produced the color ferrari is painted with? would all that be necessary too? and why not even permission from the parents who gave birth to the model?

I mean at some point or another it just gets a bit ridiculous.

Comment edited 58 seconds after posting
13 upvotes
57even
By 57even (7 months ago)

@absentaneous

Yes well done, you have put your finger on the depths of this absurdity. This kind of litigation is turning life for everyone into a legal circus. The chances of anyone in a creative business staying out of court is getting smaller and smaller.

4 upvotes
Zdman
By Zdman (7 months ago)

So if you spent a year making a sculpture (yes they can take that long). Put it in a gallery and some photographer took a picture of it and made millions off it you'd say it was absurd for you to make any money? What people are missing here is that the sculpture is a work of art that took time an effort. Not a model who takes a few hours (possibly minutes) out of her day.

2 upvotes
Mr Ed M
By Mr Ed M (7 months ago)

The sculptor's original commission was $775,000, paid by the taxpayers for a work on public land. The sculptures and any rights to the likeness of them belongs to the taxpayers.

2 upvotes
absentaneous
By absentaneous (7 months ago)

@zdman,

well, first of all the photographer who did that wouldn't make money selling his sculptures but a photo he took of them. the question then is can't be a photograph of a sculpture considered a work of art as well? like a photographer would study a perfect angle and perspective to take a photo, study the perfect lighting conditions etc. and then take a picture of the sculpture with the intention of presenting his own artistic idea or meaning. that wouldn't count at all just because he took a picture of something someone else made?

I mean how about if I took an architectural photograph that I could sell for really a lot of money. does that mean that all architects who designed buildings I took the pictures of should get a share from my sold photo too? or some time ago I sold 10 copies of a picture of a assembled lego set. does that mean I owe lego company some money? where to draw the line?

2 upvotes
Valentinian
By Valentinian (7 months ago)

@ absentaneous
1) the firm who designed the clothes the model was wearing maybe is the firm commissioning the spot.
2) the tires the ferrari is using or the color ferrari is painted with are part of the ferrari; so it would be enough to have the ferrari consent.
3) The permission from the parents who gave birth to the model are needed only if the model is under age.

0 upvotes
plevyadophy
By plevyadophy (7 months ago)

@Valentinian

Your point about the tyres on a Ferrari misses the point that the tyre company probably makes tyres that fits other makes and models of car.

So Absentaneous has a very good point in asking as he does about the situation of a model shoot with a Ferrari.

I think the problem with a lot of these court rulings is that by and large the judges don't understand the creative process or the its market place nor do they, in their arrogance, bother to call upon expert testimony from practitioners in the field.

If the judges in many of these recent cases had bothered to, for example, read the views of members of this site on the issue of copyright, drawing from a wider pool of experience and understanding, then I think that many of the judgments would have turned out differently (maybe not as we would all like, but certainly differently). The legal practitioners, in my experience, are also to blame due to a very narrow eduction thus lacking the ability to present the issues well.

1 upvote
absentaneous
By absentaneous (7 months ago)

@valentinian,

the problem with your comment is that you are already implying how things should be while I am wondering why can't they be different since apparently taking a picture of something someone else made or designed is supposedly not allowed without his or her permission.

I mean why the company which produced the color or tires shouldn't be compensated if someone sold a picture on which something they made would be showing? so, the question is exactly where to draw the line? why can't I take a picture of some sculpture and sell it freely but I can take a picture of some tires or a paint without a problem? it kind of appears as a double standard to me.

1 upvote
lensez
By lensez (7 months ago)

@absentaneous

Ferrari is a brand and you can't use their brand in ways that they don't want you to. Like you can't put dog s**t on the hood and photograph that next to the Ferrari logo. So you have to get permission. Paint does not have a brand image to protect because blue paint looks blue period. You can't do a close-up of the tire that shows the brand name without permission of Pirelli etc. Same thing with the sculpture. The owner of the art has to give permission as to how you use their art.

1 upvote
Valentinian
By Valentinian (7 months ago)

The sculptor's work was exposed to the public the same way a song is copyrighted and published. Anybody who sings that song in concert for a profit should pay something to the author.
Of course the USPS had to pay the sculptor.
As someone in this forum already pointed out, it is very strange that the US government didn't reserve all rights to reproduce and use in any way the sculptor's work when his work was commissioned and he was paid.
Isn't that what happens, for instance, when you enter one of your photos into a photographic contest?

Comment edited 2 times, last edit 10 minutes after posting
8 upvotes
ProfHankD
By ProfHankD (7 months ago)

Actually, I don't think a photo is generally a copy/instance of a statue but often can be simply using elements of statues as components of a fundamentally different work. To me, the thing that makes the post office inescapably culpable is that the image is explicitly identified as BEING the "Korean War Veterans Memorial." Hard to deny it's intended to be a copy when it is clearly marked as such....

3 upvotes
peevee1
By peevee1 (7 months ago)

Marking it what it does does not change what it is.

0 upvotes
shoevarek
By shoevarek (7 months ago)

I think you mentioned real issue. I also do not understand why, after spending huge sum of money, those that comissioned the sculpture did not ensure the sale agreement included all rights to its future use. I would still want the government agencies enforce the rule never to commision any future work from that artist. The predatory legal behavior should be discouraged. Unfortunately that would probably infringe some other misused law like equal opportunity or something.

2 upvotes
ProfHankD
By ProfHankD (7 months ago)

Legally markings matter a lot. For example, anyone can make a pair of jeans or paint a painting... it's when you put a brand name tag on it or fake an artist signature that it becomes very seriously illegal. In the same sense, a 2D photo is not a very good copy of a 3D statue, and this shows more snow and trees than statue details, but the label made the intent clear.

1 upvote
RichRMA
By RichRMA (7 months ago)

ANYTHING you photography today that you didn't create yourself is liable to this form of court-abuse.

4 upvotes
Marvol
By Marvol (7 months ago)

Only if you, like USPS, multiply it millionfold and sell it for your own profit, without paying the original artist a penny.

3 upvotes
Paul B Jones
By Paul B Jones (7 months ago)

I wonder if this is analogous to Photographer A taking a picture of an image by Photographer B - and then Photographer A selling the new picture.

That certainly does not seem right.

0 upvotes
xMichaelx
By xMichaelx (7 months ago)

It's not analogous. At all.

It's clearly established that photographing a 2D work for the purpose of creating a copy (which is what you describe) is not allowed. And that photographing a public domain 2D work for the purpose of reproduction DOES NOT give the photographer (or anyone else) copyright over the new image (see Bridgeman v. Corel).

However, it's also established that when photographing a 3D object like a sculpture or building, fair use CAN apply, depending on the whim of the judge. In this case, an awful lot of legal scholars are weighing in, and most are as amazed as anyone else who's familiar with the case law (even though it tends to be inconsistent).

Lots of people here seem happy about this ruling, but think about it: Have you ever photographed a building or sculpture? Of course you have.

This is a very bad ruling for photographers, making the case law even more grey than it already was.

6 upvotes
plevyadophy
By plevyadophy (7 months ago)

@xMichaelx

Thanks for pointing out how bad this is for photography. I have been going through all the comments, and just before I got to yours I was thinking the same thing myself.

I was thinking to myself "wow! hold on a minute! almost everything one photographs pre-exists the camera being used and was made by someone else and is therefore a copy of someone else's work making us all open to being successfully sued for almost EVERY picture we make, if this ruling is to be followed"

The only basis upon which I agree that the sculptor should be compensated is on the basis of fair use or perhaps contract law. You see, the sculptor negotiated a price based on the use to which he had been informed the sculpture would be put. No doubt, had he been informed at the outset that a likeness of his sculpture would appear on national stamps then I would hazard a guess that he would have negotiated a higher fee. On that basis I think the sculptor is right to have pursued the postal service.

2 upvotes
plevyadophy
By plevyadophy (7 months ago)

it seems that someone at the postal service messed up when drawing up the contract as these are matters that should have been addressed at the outset (usage rights).

2 upvotes
unknown member
By (unknown member) (7 months ago)

I think that's nonsense. So what if he was the sculptor, it's a national war memorial! Stupid and abusive courts!

Comment edited 2 minutes after posting
5 upvotes
plevyadophy
By plevyadophy (7 months ago)

No not really. Think of it like this:

I was thinking to myself "wow! hold on a minute! almost everything one photographs pre-exists the camera being used and was made by someone else and is therefore a copy of someone else's work making us all open to being successfully sued for almost EVERY picture we make, if this ruling is to be followed"

But on the other hand, the only basis upon which I agree that the sculptor should be compensated is on the basis of fair use or perhaps contract law. You see, the sculptor negotiated a price based on the use to which he had been informed the sculpture would be put. No doubt, had he been informed at the outset that a likeness of his sculpture would appear on national stamps then I would hazard a guess that he would have negotiated a higher fee. On that basis I think the sculptor is right to have pursued the postal service.

There was clearly a cock-up by the postal service in contract negotiations.

1 upvote
backayonder
By backayonder (7 months ago)

Hey there's a big monkey posing on the top of the Empire State Building does the architect know?

1 upvote
57even
By 57even (7 months ago)

show some sympathy darn it! Without large payouts how could poor lawyers earn a living?

0 upvotes
Fully Framed
By Fully Framed (7 months ago)

Does anyone know how this would work for a photo of a building created by a famous architect? What about a sculpture being the backdrop of a fashion shoot?

I read not long ago where a business was forced to change their name because they used "I [coffee cup image] NY", which the city said was an infringement of "I [heart image] NY", a trademarked logo.

While I support the spirit of copyright laws, some can appear vindictive in their use and seemingly a broad stretch of the imagination. Are we soon to see patent trolls invading the world of photography like they have software? I'm not asking this to impugn the judgement in this case but just to get feedback of what others might thinks about the future of photography and copyrights based on recent, aggressive litigation.

4 upvotes
D1N0
By D1N0 (7 months ago)

Melt down de damn statue and dump it on Gaylords lawn.

11 upvotes
Raist3d
By Raist3d (7 months ago)

Agree with the court. Moreover- Ali (the photographer) could also be sued by Gaylord from what I read of the case. If I was him I would seek rights from Gaylord asap, as he did from Lecky, not Gaylord.

The problem here was a problem of due-diligence. The US should have "cleared" all the way to title/certificate who owns the copyright of the original work, and if Ali was authorized to sell forward *for other types of art creations based on the work* new expressions of said work (i..e the stamps).

Just because Ali had say in theory seek proper agreement with the original copyright owner (Gaylord, the sculptor) to make a derivative work does not entitle him to "sell forward" the right for someone else to do a derivative work on his photograph, even if the photograph is his own work. Kind of analogous to company B licensing a patent from company A, does not entitle company B to license forward to company C.

2 upvotes
Mr Ed M
By Mr Ed M (7 months ago)

Does Gaylord have model releases from the soldiers who's likeness the sculptures were based?

1 upvote
plevyadophy
By plevyadophy (7 months ago)

@Mr Ed M

I don't think Gaylord needs to. Firstly, I suppose,the soldiers were in a public place, and for second, their likeness is not being used for advertising or product endorsement as their likeness IS the product.

0 upvotes
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