Previous news story    Next news story

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
Stephen123
By Stephen123 (7 months ago)

Seems pretty clear that it's a derivative work. It also seems pretty clear that that doesn't effect whether the sculptor is owed money. I am a bit shocked though that the federal government made a national monument without buying the right to use the image of the monument. I'm also surprised by the ruling that being on a stamp hurts anyones financial prospects.

6 upvotes
Stephen123
By Stephen123 (7 months ago)

Some people may be confused by the references to "Transformative". The court isn't saying anything about the photograph not being a creative work. In this case 'Transformative" would mean parody, criticism, academic research and that sort of thing. So saying the work is not Transformative is NOT the court saying the photograph is not its own original but derivative work.

1 upvote
Kirppu
By Kirppu (7 months ago)

Customer ordered the statues and paid the sculptor. So in my opinion after that sculptor should not get anything.

Monument photographer got paid for the photo so he also has his share of the money.

So rest of this idiocracy circus is just punch of greedy people arguing about money that doesn't belong to them.

13 upvotes
Raist3d
By Raist3d (7 months ago)

That all depends on the terms of such sale or services rendered. Did you read the court case?

5 upvotes
Zigmont
By Zigmont (7 months ago)

...and the customer is the US government, National Park Service, so it belongs to everyone and is no longer under copyright.

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

Customer orders your print and pays you. So, after that you should not get anything.

Even if customer makes thousands of copies and sells them.

That might be OK with you, but it's not with me.

6 upvotes
call me Skippy
By call me Skippy (7 months ago)

I have to say, I find the ruling outragous. Ownership and right of property have no intrinsic value whatsoever in my opinion. In my opinion it is functional: As long as it is beneficial for the whole society to guaranty these rights, they should be protected. In this case, this work of art occupies public space (the memorial I mean) and I dont think it is beneficial to guaranty any right of ownership in this case to the artist. Such rights impede on usage of public space in this case. People may feel otherwise - which is ok. But looking at the proliferation of creativity one can observe, all this money-grabbing might get very nasty. If a public administration - for example a local authority - commissions such work of art, the should really make the treaties water-tight and buy all the rights in order to prevent such rulings. Artists who dont want to go along shouldnt get the job. Just give the newcomer a chance - who will be happy to be paid at all.

2 upvotes
KariIceland
By KariIceland (7 months ago)

So i am allowed by your logic to steal your car? Cool man, whats the address?

1 upvote
call me Skippy
By call me Skippy (7 months ago)

The analogy doesnt hold. First, we have rules, where I am allowed to park my car. If I dont adhere, it gets towed. Second, there are good reasons to enforce property rights in the car-case (but now that you mention it: I would be strongly in favor for a non-ownership policy on cars. Would be way more efficient, since cars are standing around and doing nothing about 90% of the time.). Third: I dont park my car in order to be looked upon and being part of the public space. It is a necessity for the car to stand around, not an intentional way to design a public space and define it. Fourth: In fact, the car manufacturer will most likely not bother me, if I put a photo of the car on a stamp. Despite the fact, that he put a lot of creative work into it. I can take a picture of a ferrari (even if only one of this series has been build) and sell posters of it. More reasons but almost no characters left...

2 upvotes
spqr_ca
By spqr_ca (7 months ago)

So, as soon as your work is publicly displayed we're free to take and use as we see fit? Even for massive profit for ourselves and none for you? That may be okay with you, not so much by me. Fortunately, the law in most countries sides with me, for good reason.

3 upvotes
call me Skippy
By call me Skippy (7 months ago)

It doesnt mean that at all: To display something publicly is not that same as designing a statue or memorial for a public space. A museum for example is for public display without the exhibited artwork being part of public space. That would be a compromise. If access is dependend on admission or stuff, the right should be protected. Otherwise, like in the case of a memorial or statue on a public place, everything should be fair game. Think it through: what is considered protected by copyright seems to be along the lines of what traditionally was considered "creative". But with all the changes going on, it should either apply to way, way more professions and products, which would have bad consequences. For example: Look up the french law and what it has to say about the Eiffel-Tower. Or mentioned in another comment: What about flower-buques or stuff like that? The other possible way to go would be to relax the rules, which I favor. If it is money vs. creativity I vote creativity.

0 upvotes
lensez
By lensez (7 months ago)

@ Call me Skippy

Your concept of property rights is rather loose. The entity that purchased the art for public display has to buy out the rights to the art. Then the entity has to release it in creative commons so anybody can use it. Wiping out the money to buy the rights to the art will wipe out a lot of the art. It's not "money vs. creativity." Just the opposite, money relates to the creativity, they're not opposed to one another. Property rights are an important part of a free society. Taking property rights away from people--where does it stop? Can they take your money out of your bank account? Can they take your personal possessions that you value - the pictures you took of your loved ones? As you say, think it through.

2 upvotes
call me Skippy
By call me Skippy (7 months ago)

I wouldnt call my concept of property rights loose... And I did think it through, which is why I dont post pictures of my loved ones on freely accessible websites. But you are comparing apples and oranges with this example anyway, because there are other rights than my rights as a photographer involved when I put a picture of someone up, nameley their right to their picture and public appearance.
And in the case of the memorial it definitley is against creativity whats going on: I would never take a picture of the monument and post it anywhere - commercial or otherwise now. The notion, that property rights are at the basis of a free society is flawed anyway. Just no connection there: monarchies had property rights, totalitarian systems knew them - as did societies in the distant past. This connection you make is just a notion of a special flavor of political opinion or theory. Even if I bought the connection: Free societies differ vastly in regards to the property rights they protect.

Comment edited 46 seconds after posting
0 upvotes
lensez
By lensez (7 months ago)

@ call me Skippy

"I would be strongly in favor for a non-ownership policy on cars. Would be way more efficient"

Like I said, you seem to have a loose concept of property rights. I don't know if you are an American citizen, but in our country we have, in Amendment 5 of the US Constitution, part of our Bill of Rights, something that says, "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The fact that this is part of our Constitution is evidence that property rights are an important part of a free society. Property rights are not a "special flavor of political opinion" in the USA, they're the law. It's your interpretation of property rights that is a "special flavor." And I wasn't talking about property rights in totalitarian states, I was talking about free societies.

1 upvote
call me Skippy
By call me Skippy (6 months ago)

No loose concept at all - and you proof my point. That I am in favor of a non-ownership concept when it comes to cars doesnt proof anything, because I respect that it is otherwise right now. Furthermore: The amendment leaves ample room for interpretation. What is "just compensation" - to mention one vague concept there. And the concept of property is obviously not absolute, since it can be taken by "due process". And lastly: US isnt the only free country and there are many different takes on property-rights are handled in them. For example: In Germany private property can be forced to become public property when public needs are big enough. It isnt done lightly and often but it can happen for example with land, if it is needed for public infrastructure. BTW: One of my earlier comments clearly stated that I would vote for only commissioning art for public spaces to artists who give up their rights ... BTW: you have a bit loose concept of evidence... :-)

0 upvotes
lensez
By lensez (6 months ago)

I respect your right to your opinions. I do believe that national constitutions are strong indicators or evidence as to what that society values. I see Article 14 of the Basic Law for the Federal Republic of Germany is about property rights. While I am not an attorney, I believe your article 14 and our Amendment 5 are very similar. We too allow appropriation for public use, often called "eminent domain" in USA. Your opinion may differ as to whether the inclusion of property rights in constitutions is evidence of "importance" in a free society, but that's fine with me. I have said what I wanted to say. You can have the last word if you wish.

0 upvotes
William Hubert
By William Hubert (7 months ago)

The sculpture is certainly covered by Copyright statue. The photograph is also covered by copyright. The real issue is that one does obviate the other. In order for the photograph to be utilized bu the PO both of the copyrighst need to be satisfied. And why not ? If I propose a money making scheme to sell prints then I better clear the copy right with appropriate payment else I would expect to be sued for the rightful share the holders are due.

1 upvote
UnderDriven
By UnderDriven (7 months ago)

The key issue here is that this was a photo of a work of art, not some buildings on a street. The artist deserves to be compensated if someone else is making a profit from his work. This also applies to photographers who are the creators of the art work (not taking a photo of someone else's art).

As to whether the government should own the rights to monuments, if the contract was written in their favor they would own the rights. However, if the government makes contracts which does not give them the rights, too bad. In any case, had the government negotiated with the correct copyright holder up front they would have had to pay a lot less--again, they blew it and they have to pay.

The photographer didn't do anything wrong. The real culprit was Mr. Lecky of Cooper-Lecky Architects who claimed to own the copyright. None of this would have happened if he had not falsely claimed ownership. He should be sued, but greed is probably not sufficient grounds, unfortunately...

2 upvotes
M Jesper
By M Jesper (7 months ago)

somebody designed them buildings too you know.

4 upvotes
JaFO
By JaFO (7 months ago)

I wonder what would happen the moment someone classified a building as 'art'.
Would Google have to remove it from Google Maps and/or pay money to the architect ?

A cow isn't compensated despite the fact that both the farmer and restaurant profit from its product.
So why should an artist be treated any different ?
Let them milk artists. A true artist will simply create more art.

0 upvotes
lecoupdejarnac
By lecoupdejarnac (7 months ago)

This makes me think of Richard Prince, who takes photographs of other photographs and makes a lot of money doing it. This case sounds like a strong precedent for suing that guy.

Article about Richard Prince: http://www.nytimes.com/2007/12/06/arts/design/06prin.html?_r=0

1 upvote
UnderDriven
By UnderDriven (7 months ago)

According to Wikipedia (taken from Title 17 of the United States Code): "First, when a building is ordinarily visible from a public place, its protection as an 'architectural work' does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work."

2 upvotes
onlooker
By onlooker (7 months ago)

The level of contempt for the rights of the creator is astonishing among the so called photographers here.

9 upvotes
Ferling
By Ferling (7 months ago)

I guess to some it's the size of the 'award' that hides a truth. In reality, it's no different than finding a vendor at a flee market selling small prints of racing cars that he stole from others Facebook accounts. I have a friend whom shoots racing that fell victim to this. He has exclusive access and relationships with the crews to get all the more desired shots. Likewise, in comparison for this issue, if it wasn't for Gaylord's work, the opportunity for the post office to profit would have been possible.

1 upvote
jvkelley
By jvkelley (7 months ago)

The fact that it's a national monument makes it seem different too. The Statue of Liberty and Mount Rushmore are also sculptures. They have both been made into postage stamps.

If a government employed photographer can't own the copyright of a photo that he took while on the job, why can a government commissioned sculpture own the copyright to someone else's photos of his work?

5 upvotes
D1N0
By D1N0 (7 months ago)

You just raised it tenfold.

0 upvotes
JadedGamer
By JadedGamer (6 months ago)

Making money off a national monument does not at all make Gaylord seem a greedy man... :/

0 upvotes
Ferling
By Ferling (7 months ago)

Perhaps it would have been equally fair if the post office simply gave the stamps away for free? Correct?

0 upvotes
PeterAustin
By PeterAustin (7 months ago)

Was Gaylord entitled to the sole copyright? Things to consider are: The basic design to the memorial was given to Gaylord, and so was the concept for a Korean War memorial (the court found that this context was significant in denying fair use, but that context was given to Gaylord). Also, others were involved in creating the memorial. If Gaylord creation is seen as a contribution to collective work, is it work for hire? Lastly, as a photographer, I disagree that the snow on the statues is solely "Nature's decision" and its depiction not a transformative act by the photographer. I disagree with this notion. There is no question that the choice of snow cover and lighting was a deliberate artistic decision by the photographer, involving a fair amount of creative effort. The court ruled that the creative component of the image was an act of God and not of the human mind. The ruling states first that Alli's copyright as a derivative work is not questioned, only to deny it later.

Comment edited 6 minutes after posting
3 upvotes
UnderDriven
By UnderDriven (7 months ago)

It may depend on whether Alli was a professional photographer or just a hobbyist, at least in the eyes of the court. A professional photographer (especially a highly regarded fine art photographer) would be more likely to be believed to have added some value to the original work. I'm not saying that an amateur couldn't add value, but perceived expertise does matter in a court of law. The brief doesn't state whether Alli was an amateur or a pro.

If Alli was suing for a part of the copyright that would have been an interesting case (forcing the court to decide how much "value" is added through a photograph, if any). However, Alli was not involved in this case (other than as a witness) so there was no choice but to give Gaylord all the credit. Unfortunately for Alli, he already made a deal with the government and with the person who he thought owned the copyright so he has no legal options...

1 upvote
citizenlouie
By citizenlouie (7 months ago)

@ UnderDriven

Ali has no part in this case other than being a witness. When the PO bought the photo, it's PO's responsibility to check for possible copyright issue before it bought it. After the PO bought it, PO is responsible for the liability for publishing it. Ali is not responsible for the punitive damage unless he also sold the arts on his own behalf.

Actually a professional is more likely to be sued than an amateur. Because it's indefensible if you're a pro, as you should know better this is clearly a copyrighted infringement when you did it.

The case PO should use to defend itself is, PO is part of the government, and if Korean War Memorial was paid for by the government as a public art to honor war heroes, then how can the owner (the government) not own the right to its own asset?

1 upvote
SomebodyFamous
By SomebodyFamous (7 months ago)

Who cares? It's just people scrabbling for money. Got no interest in either party. If anything, it proves to me the folly of selling photos for money. Better to have a real job and to keep photography for fun.

0 upvotes
John Koch
By John Koch (7 months ago)

The stamp publicizes the monument, just as hundreds of other stamps have done over the years. Any photograph or graphic adaptation of any object can be alleged to be "transformative." People who side with Gaylord need to be very careful. The only difference between what the USPS did, on the one hand, and what millions of other do, is that the USPS is a fatter target for lawsuits. The monument was purchased with public dollars and stands on public lands.

Next the Ross family could file a mega compensation claim on behalf their deceased ancestor, Betsy, credited with designing the flag. The plaintiffs will demand billions from the Treasury and every car dealer across the country who uses the flag.

4 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

I believe the copyright on the flag is long expired. The copyright on this sculpture will eventually expire too, and then you can steal the image as much as you want. Until then, though, you have to pay for commercial use.

Rule 101 of commercial photography: Get a signed release form, whether for a model or for property.

3 upvotes
DenWil
By DenWil (7 months ago)

I agree with the outcome 100%.

Photographers generating commercial work - even if only few pieces here and there- need to get it through their thick skulls that their quest for an image does not supersede everyone else's rights.

Some of the shooters publishing images in the forums on DPR that prominently feature other artists' work would be well advised to consider other subject matter for their published works . In the US they could be sued for copyright infringement and they would lose. Just a matter of time.

Comment edited 8 minutes after posting
3 upvotes
John Koch
By John Koch (7 months ago)

Just a matter of time before people like Gaylord make the whole idea of "public monument" an oxymoron?

4 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

@John Koch: The copyright will eventually expire and it will become fully public. In the meantime, the creator has a right to be compensated for his (considerable) effort. If you're a photographer, you should appreciate that right yourself.

2 upvotes
egrivel
By egrivel (7 months ago)

It seems that the decision mostly hinged on the first of four points mentioned (the purpose and character of the use, i.e. selling stamps to collectors). What about the fourth point (the effect of the use upon the potential market for or value of the copyrighted work)? That effect is just about zero. The artist did not lose anything by the USPS creating the stamps, so what, exactly, is he getting reimbursed for? It seems to me this shows there is something seriously wrong with copyright law as it is written.

So what happens when somebody has a travel blog, visited DC, and posted a his picture of any of the monuments? Can they be sued by the artists? What if he uses Google ads on his blog and makes a few bucks off of it?

2 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

You ask: "So what happens when somebody has a travel blog, visited DC, and posted a his picture of any of the monuments? Can they be sued by the artists?" The answer: The copyright has expired on those monuments. Copyright doesn't last forever.

1 upvote
lecoupdejarnac
By lecoupdejarnac (7 months ago)

"Copyright doesn't last forever."

They may not last forever (although some corporations have been lobbying hard for this) but the term keeps being extended and are much longer than they intended to be when the Constitution was written.

According to the copyright clause of the Constitution:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Notice the "for limited Times", where "limited" has been continuously extended throughout the last century:
http://en.wikipedia.org/wiki/File:Copyright_term.svg

By extending the term to be as long as it is, works are greatly delayed from entering the public domain and benefiting the whole of society.

0 upvotes
plevyadophy
By plevyadophy (7 months ago)

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

0 upvotes
egrivel
By egrivel (6 months ago)

Many of the monuments in Washington are from the 20th century. The MLK monument was only unveiled recently. As far as I know, copyright is currently something like life of the creator plus 75 years.

0 upvotes
SergeAP
By SergeAP (7 months ago)

Let's talk about the artistic merits of this monumental work? Do you? No?
Demolition - the money is received!

0 upvotes
nelsonal
By nelsonal (7 months ago)

I have a real issue with government sponsored monuments not being owned by the people from the date of commission.

13 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

All you need to do, then, is convince your government(s) to write that language into each and every commission, or convince them to pass a law to that effect. As things stand, though, creators retain rights for a period of time unless otherwise agreed. That protects you as a photographer from being exploited by some other artist.

5 upvotes
brodgar
By brodgar (7 months ago)

A comment to James Bligh.
Copyright has a time limit which varies with each country and is roughly 51-91 years, with a lot of exceptions. I think you would be safe to shoot the Parthenon.

On the other hand you will find bureaucracy everywhere. In Fife, Scotland, I was told I could not shoot pics of Pictish stones because the museum “owned the copyright”. The stones were 1500 years old !!

1 upvote
James Bligh
By James Bligh (7 months ago)

So it goes for the Pictish stones.^^ Who knows the Greek may make their own copyright law and declare perpetual copyright of Parthenon?

1 upvote
James Bligh
By James Bligh (7 months ago)

This comment is for everybody but it may be especially relevant to the comments of dblues and whtchocla7e below.

It means that if somebody take pictures of something or someone of which someone claim(s) copyright and make money out of them they are liable to law suits. But the line is very thin, for example are someone who took the pictures of Parthenon and made money out of them liable? Who knows, they may be when the Greek claim copyright of it.

0 upvotes
brodgar
By brodgar (7 months ago)

Thanks for making this judgment more widely known. It really helps to increase the knowledge of copyright and the risks of copyright theft, especially in the artistic creative domain.

1. Payment to an artist (photographer, sculptor, whatever) to create a work, does not mean that the purchaser acquires the copyright for the work, unless it is specifically sold as part of the transaction.

2. On the face of it Alli appears to have done the right thing but got the details wrong. He purchased rights from someone who did not own them. Caveat Emptor, but he looks like being one of the good guys here.

3. Photographers and other creative artists should read the judgment carefully to get an understanding of the limits to copyright (at least in the USA) particularly the “fair use” limitations.

3 upvotes
CZFox
By CZFox (7 months ago)

For me as an amateur photographer, these copyright laws created by lobby are ridiculous.
If I take a photo of some part of street should I pay all people in a photo, all companies having a shop there, all companies who built the houses and roads, and the Mature of nature for growing a tree, and feel afraid that someone already took similar photo and will sue me? Just because I would sell a few copies or put it on a commercial website?
I simply don't understand these copyright laws, so much restrictions.

4 upvotes
Eleson
By Eleson (7 months ago)

But you do understand them when someone takes a copy of your photo and sells it?

3 upvotes
jvkelley
By jvkelley (7 months ago)

I don't think copyright laws are written to protect amateur photographers (In theory they can, but unless you have a lot of money, they don't do you a whole lot of good). If a blogger starts stealing your photos that you posted on the internet, does anyone ever stop him? The sentiment is basically "well, you shouldn't have put your work on the internet."

Comment edited 2 times, last edit 1 minute after posting
2 upvotes
JadedGamer
By JadedGamer (6 months ago)

Well, if you "recreate" a photograph you have seen by going to the location and shoot a picture yourself, does that make it a derivate work because of your inspiration?

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

Gaylord did not sign over his intellectual property rights to the sculpture when it was commissioned, so he can continue to derive income from it above and beyond the $750,000 he was originally paid for it. I need to get into the memorial sculpture business. And the number of Gaylord's manager/agent.

5 upvotes
MadRussian
By MadRussian (7 months ago)

Boo and hiss to the Park Service for not demanding that intellectual property rights be part of the deal and Gaylord for raping the Postal Service. The USPS does not make a profit, they are billions in the hole, in the end the American taxpayer will have to pay for Gaylord and his greed. I just love it when folks have the greedy gimmies, worse yet the courts backed him up.

0 upvotes
KariIceland
By KariIceland (7 months ago)

Madrussian, the only service the USPS has given me as someone sending and receiving packages from and to the usa is the middle finger, i have had packages stolen, packages lost, packages look like they went into the eye of a hurricane, the best thing to happen for the usa's reputation is to let usps go under.

3 upvotes
plevyadophy
By plevyadophy (7 months ago)

@MadRussian

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

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

I think it would be fair and reasonable for anyone to assume that any sculpture they are paid to create for any national military memorial commemorating a major war will appear pretty much everywhere and anywhen the govt or its services or the American people deem they would like it to. And also being a public monument, it would be reasonable to assume the word public by the dictionary definition of 'shared by all' precludes him from having anything privately owned whatsoever about the monument to sign over or retain in the first place.

0 upvotes
paulbysea
By paulbysea (7 months ago)

I think this judgement is fair to all. Photographers complain when people use their images without consent or payment, why should we get different treatment. Lots of visitor attractions allow amateur photographers to shoot and print their shots for personal use, yet do not allow professionals to sell photos of the attraction without consent and a royalty fee. Which seems fair to me.

2 upvotes
KariIceland
By KariIceland (7 months ago)

Yes and no, fair = he gets all the profit so the uspostal service gets no profit for stealing, plus a fine to discourage them from doing it again

1 upvote
dgeugene1
By dgeugene1 (7 months ago)

If the USPS had taken the trouble to ask Gaylord in the first place they probably could have obtained the rights to the image at a reasonable cost.

1 upvote
Dmitriy Balashov
By Dmitriy Balashov (7 months ago)

...ебала жаба гадюку...

1 upvote
dblues
By dblues (7 months ago)

So if I shoot an image of Mount Rushmore and sell thousands of copies, who do I have to pay???

3 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

You have to pay the copyright holder, of course.

1 upvote
dblues
By dblues (7 months ago)

And just who might that be?

0 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

@dblues - if you're the one buying the photo for commercial purposes, it's your responsibility to find that out. Not the photographer's.

1 upvote
dblues
By dblues (7 months ago)

What I am talking about is that Mount Rushmore is a sculpture, designed by (I don't remember). Is it copyrighted, is it owned by anyone (the sculpture on the face of the mountain). Do I have to pay the government or an individual for the right to take a picture of it (the monument) and sell it? What's the difference of this and any other sculpture?

Comment edited 2 minutes after posting
0 upvotes
Denis of Whidbey Island
By Denis of Whidbey Island (7 months ago)

The lesson is that photographers, like all artists, need to learn to create their own work. But this is a pet peeve of mine: photographers who photograph sculpture, then sell prints of their "art."

Denis

3 upvotes
SirSeth
By SirSeth (7 months ago)

Wasn't Gaylord commissioned (in other words paid by the USA) to design the artwork? So wasn't he working for them? If so, how can he then sue the USPS, a branch of the organization who hired him and paid him? If I was hired by the any organization or company to do work for them, and they paid me for that work, it would seem that this agreement and payment would cover their use of it--even for profit. I also don't see how it being a small and very modified photography of the image is any different than the way Google and Pinterest side step copyright infringement by claiming they only use a small thumbnail representation to cataloge their images. Some might say that, well, Google and Pinterest don't make money on these thumbnails, but I'd argue that the USPS primarily makes money on people sending stuff and not selling artwork. In other words, a lot of the profit that the USPS made was because someone wanted to send maple sugar candy to grandma in Tulsa.

3 upvotes
cjcampbell
By cjcampbell (7 months ago)

Those who think Gaylord was greedy should think about a powerful government subsidized corporation that wanted to use his work for free. Who was greedier?

4 upvotes
JadedGamer
By JadedGamer (6 months ago)

Not "for free", they paid the photographer. And it's "subsidized" in the same way the Army os "subsidized": It is a service that the Government feels they need to finance because the market does not cover all the needs.

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

Those werw made to be collector item ( limited issue stamp , first day covers etc ... and merchandise as the case already put it ). So for real USPS are just doing business, making money with this intellectual property, and rightly so they should pay for it ...

2 upvotes
chekist
By chekist (7 months ago)

Clearly USPS was not trying to sell either Ali's or Gaylord's work - they were trying to remember the Koran War casualties.

Gaylord should feel lucky that he was hired to create the monument, and stop trying to make money off the dead solders.

11 upvotes
SterlingBjorndahl
By SterlingBjorndahl (7 months ago)

According to the article, the USPS made hundreds of thousands of dollars of profit on these stamps sold to collectors - i.e., stamps that will never to be used to mail anything. I think it's naïve to claim they were just trying to remember the Korean War veterans. They were in it for the money.

6 upvotes
JosephScha
By JosephScha (7 months ago)

To Ken Johnes: re "and John Alli ,stop being a silly copycat , trying to sell photos of someone else´s artwork?you thought no one will notice? eh? ;-)"

In the 2010 ruling (at the link above) it says that Alli sought out a copyright holder and was informed by the architect of the memorial that they were the copyright holder. They lied. Alli paid them 10% of his profit from the image. Gaylord sued Alli, which made him aware of the true copyright holder ... but the decision does not follow up on what happened in that story. Point it, he didn't thing no one would notice, he did his best to follow the law.

2 upvotes
b534202
By b534202 (7 months ago)

So USPS now needs to sue the 'fake' copyright holder to reclaim their loss.

3 upvotes
whtchocla7e
By whtchocla7e (7 months ago)

God, the creator of all things that people have been photographing since the dawn of mankind, is preparing a massive law suit against everyone who's ever pushed the shutter button. The consequences will be severe.

10 upvotes
Ken Johnes
By Ken Johnes (7 months ago)

He he ,,,,congratulations to you Kari for actually proving "your" point all by yourself with so few words :-)))))))

Comment edited 48 seconds after posting
9 upvotes
Ken Rocket
By Ken Rocket (7 months ago)

BTW, did the veterans themselves receive a penny?

4 upvotes
Eleson
By Eleson (7 months ago)

@ken
Do you mean from the photographer or from the maker of the sculptures?

0 upvotes
mcshan
By mcshan (7 months ago)

The good news is Gaylord is pushing 90 years old.

1 upvote
Ken Johnes
By Ken Johnes (7 months ago)

and the bad news is he became a senseless greedy old man.;-)

Comment edited 36 seconds after posting
5 upvotes
Humberto_Yaakov
By Humberto_Yaakov (7 months ago)

why "senseless greedy old man", is he the owner of the rights or not??????!!!!!!

7 upvotes
Rockaw
By Rockaw (7 months ago)

Are these comments from photographers? Why would you support unauthorized copying? Copyright belongs to the artist, NOT any person who commissioned or bought the art.

5 upvotes
Ken Johnes
By Ken Johnes (7 months ago)

yes these comments are from photogs who thinks the base of the whole circus is greed of a sclpturer who already charged the taxpayer for sculpting a few of his fellow soldiers vs a dumbo photog who took a photo of that sculpture and sold it to Postal service who made millions by selling it without giving back anything to those people who actually deserve a part of their profit, "the soldiers the sculpture is based on "

(wanna bet this gaylord guy never shared a penny with those poeple in the sculpture?)

3 upvotes
Hugo600si
By Hugo600si (7 months ago)

Seems a little excessive, normally theft isn't punished that highly where I live... but theft is theft. Profiting from someone else's creation, especially looking at the collector part, is something you should share royalties for. (Gotye payed a million for use of a guitar rif (not forced to pay, but paying out of decency and agreement of a 55/45 split)).

0 upvotes
fuego6
By fuego6 (7 months ago)

another DUMB decision not based on common sense.. but the "letter of the law"...

2 upvotes
KariIceland
By KariIceland (7 months ago)

It is based on common sense and the law, or would you prefer executions or that anyone can take your car?

1 upvote
Ken Johnes
By Ken Johnes (7 months ago)

a war veteran at the age of 88 getting greedy?, what the heck, his sculpture is based on real people who fought the war beside him, i bet he wont share one single penny with those soldiers even if they claim some copyright infringmint of their own ;-) .

Gaylord, you are a real war hero and a patriot.dont let your age and a lawyer take over your senses,and by the way kick the lawyer´s as** who put you on to this shameless act ;-).

in anycase ,Postal service, you made real money on that pic, donate some of it to the war Veterans.

and John Alli ,stop being a silly copycat , trying to sell photos of someone else´s artwork?you thought no one will notice? eh? ;-)
the greedy ol´granpa is still awake and watchin ya ;-))..

Comment edited 2 times, last edit 3 minutes after posting
4 upvotes
Deleted pending purge
By Deleted pending purge (7 months ago)

Legal lingo has been invented for one sole purpose, and that's shifting money...

3 upvotes
reginalddwight
By reginalddwight (7 months ago)

Gaylord is just a grumpy, greedy old man.

He was first commissioned by the Federal government to create the sculptures in 1990 for the Korean War Veterans Memorial. Then, he secures copyright protection on the sculptures which he no longer owns and now sit on public property.

Then in 2006 he proceeds to sue both amateur photographer John Alli for photographing The Column which is now owned by the U.S., as well as the U.S. for copyright infringement of a postage stamp of a photograph of "his" sculptures.

For love of money or country?

Gaylord and his attorneys have decided.

17 upvotes
Eleson
By Eleson (7 months ago)

So the result of any photoshoot is free to use by anybody, as you've already been paid?
Why is the reasoning so lame...?

1 upvote
chekist
By chekist (7 months ago)

I absolutely agree. He is a greedy old man trying to double dip. But even worse - USPS was interested in monument because of what it represents, not how it looks. If this was a pile of rocks, this is what would be on the stamp.

0 upvotes
Irata
By Irata (7 months ago)

Not saying he's not greedy, but:
Copyright and Ownership are two different things. Copyright can not be transfered to another person, ownership can.

2 upvotes
CameraLabTester
By CameraLabTester (7 months ago)

"If you make money out of what I have authored, be sure to set aside a healthy commission for yours truly."

Copyright 101.

.

6 upvotes
Total comments: 266
12