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

@ 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.

@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?

…

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.

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

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.

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?

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.

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.

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.

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.

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).

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.

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.

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

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?

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.

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.

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.

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

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.

@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?

@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.

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.

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)

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.

"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.

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.

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.

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.

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.

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

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.

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 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 :-)

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

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.

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.

@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.

@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.

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.

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.

@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?

@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.

@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.

@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.