By jlynch. By Nicole Rizzo Smith
In Potomac Park in Washington, D.C. stands the Korean War Veterans Memorial, which depicts 19 larger-than-life stainless-steel servicemen on patrol. In 2003, the U.S. Postal Service issued a commemorative stamp that shows an image of the sculptures covered in snow.
The sculptor of this work, Frank Gaylord, is himself a former World War II paratrooper. The stamp was created without Gaylord’s authorization and without attribution or payment to him. Gaylord sued the U.S. Postal Service for copyright infringement, seeking 10% of the revenues from sales of the stamp.
In Gaylord v. United States, the Court of Federal Claims (a specialized court that hears monetary claims against the United States) made a dead letter of Gaylord’s claim. It found that the Postal Service’s use of a photograph of the sculptures was a “fair use” under the Copyright Act and therefore did not infringe Gaylord’s copyright.
The circumstances leading up to the issuance of the stamp were just as tumultuous as Gaylord’s battle with the Postal Service. Gaylord won an open competition run by a government contractor, which supervised the design and construction of the sculpture. Gaylord and the contractor agreed that Gaylord would hold rights in the work, and Gaylord went on to obtain five copyright registrations.
A few years later, however, when an amateur photographer traveled to the Memorial during a snowstorm to take a picture of the soldier sculptures, the contractor wrongly informed the photographer that it owned the copyright and offered to license the copyright to photographer. The Postal Service paid the photographer for use of the photo but did not seek or obtain Gaylord’s permission. Gaylord sued both the photographer and the Postal Service for copyright infringement, but settled with the photographer out of court.
The court considered several defenses raised by the Postal Service, but focused its analysis on the fair use exemption under the Copyright Act. The fair use doctrine provides an exception to copyright infringement in order to encourage the promotion of ideas and information conveyed by a copyrighted work, and requires the courts to apply a four-factor test.
First, the court considered the purpose and character of the Postal Service’s use of Gaylord’s work, and analyzed whether the new work is transformative, that is, whether it adds a new expression or meaning to the original work. The stamp was found to meet this test, in large part due to the snow on the soldiers in the photograph, which the court described as a “surrealistic environment . . . where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings.”
The court went on to describe the considerable effort and artistic talents of the photographer in his choice of lighting conditions, angles, exposures, and time of year and day, and observed that the Postal Service enhanced the artistic expression by making the color of the photo “even grayer.” The court concluded that the first fair-use factor weighed “heavily” in favor of the Postal Service.
Indeed, the court’s analysis of the other three factors is highly colored by its finding on the “transformativeness” factor. The second factor calls for analysis of the nature of the copyrighted work and typically weighs in favor of the copyright owner where the work is of a creative (rather than a factual) nature. Yet, despite the creative nature of Gaylord’s sculptures, the court discounted the importance of this factor in light of its finding that the Postal Service used Gaylord’s work in a transformative manner in order to “comment on its social and aesthetic meaning.”
The third factor involves the amount and substantiality of the portion of the copyrighted work used in relation to the work as a whole, and requires an analysis of both the quality and the quantity of the use. The court found that, with respect to quantity, the stamp shows 14 of the 19 soldiers, which weighs against fair use.
The court went on to conclude, however, that the snow obscured the statues and “create[s] a heightened surrealistic effect,” thereby mitigating the importance of the quantity of the work used. The discussion of this factor echoes that of the first factor, and again the impact of the snow swayed the court’s analysis.
Similarly, the court discounted the import of the fourth factor – which requires an examination of the effect of the use upon the potential market for the copyrighted work – due to its overriding determination of the transformative nature of the work. Because the stamp is transformative, the court said, market harm cannot be presumed.
Indeed, the court found that the stamp caused no harm to the value of Gaylord’s work, but instead increased its value. The court commented that Gaylord’s limited attempts to commercialize his copyright in the sculptures is evidence that the stamp had not harmed his attempts to market derivative works.
Pushing the analytic envelope, the court added that a stamp is an unlikely commercial substitute for future products sold by Gaylord. Interestingly, the court did not take into account Mr. Gaylord’s record of consistently enforcing his copyright, or the possibility that a photograph taken or licensed by Gaylord could be a competitive product to the stamp.
Thus, fair or not, the court concluded that the Postal Service made fair use of Gaylord’s work and was accordingly not liable for copyright infringement. It appears that Gaylord’s effort to enforce his copyright was undone by the court’s responsiveness to an inspired photographer on a snowy day and to the artistic sensibilities of the Postal Service.