Sculptor Sues Postal Service Over Stamp With Photo Of His Sculpture

from the ownership-culture dept

Fri, Jul 17th 2009 7:33pm — Mike Masnick

Welcome to the "ownership" and "entitlement" society, where people feel that you can't do anything without paying everyone. The latest such example is a lawsuit against the US Postal Service over a recent stamp that is a photo of part of the Korean War Memorial in Washington DC. The Postal Service licensed the actual photo, but the sculptor who made the memorial itself claims that his copyrights were violated. Yes. Copyrights. On his sculpture. On a public memorial. We've seen this issue crop up before, such as with the famous sculpture in Millennium Park in Chicago. In this case, the argument for fair use is even stronger. The photo in question clearly was transformative. It wasn't just a random photo of the statues. The guy spent a ton of time, taking hundreds of different photos before getting the "one" that he liked, trying to get the exact composition, angle, lighting, snow, etc. to get the image to appear as he wanted. On top of that, there's almost no claim that this use by the USPS harmed the original sculptor's financial ability concerning his copyright. He was not even trying to exploit the copyright commercially (and, if anything, this probably provided him a lot more attention, because now his work was on a stamp). In the end, the artist's contention seems to just be "I own it, I get to decide what happens with it." Unfortunately for him, that's not how copyright law works.

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Filed Under: copyright, fair use, postage stamp, sculpture

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Anonymous Coward, 17 Jul 2009 @ 8:13pm

the artist's contention seems to just be "I own it, I get to decide what happens with it."

And, probably, "I want my cut." That seems to also be an issue in copyright lawsuits...
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ChurchHatesTucker (profile), 17 Jul 2009 @ 8:13pm

Heywaitaminute
If it was a sculpture for a public memorial, what in the hell did he think would happen?

Moreover, why wasn't it specified in the contest/bidding/whatever that the work would enter public domain? After all, it was the public paying for the damn thing.
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Anonymous Coward, 17 Jul 2009 @ 8:25pm

I want to send a box, filled with dog shit, sent using these stamps to the sculptor.

Got an address?

The Warhol Foundation. Ah hahahaha!
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Anonymous Coward, 17 Jul 2009 @ 8:26pm

Shouldn't the people who started the war get a cut of the profits? After all, if it hadn't been for them, there never would have been a memorial.
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Marc, 17 Jul 2009 @ 8:50pm

Crap
Until they start making the losers of these frivalous lawsuits pay the other guys legal fees, this crap will continue forever. Bring on the Tort reform!
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Carlos, 17 Jul 2009 @ 8:56pm

"Copyright"
I had an artist purchase a high resolution 20” by 30” print of one of my photographs. He then RE-photographed it with a 4x5 camera and began selling it as his own work. Copyright law allows me to collect from him BUT I must pay legal fees etc. He finally stopped after numerous requests, cajoling etc.

Scumbags like this are everywhere. Galen Rowell walked into a Wal-Mart photo lab years ago and found one of his images – a Tibetan rider on a horse – being used for display totally without his permission.
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Anonymous Coward, 17 Jul 2009 @ 9:08pm

Uhm... the postal service is a government entity. Does it have something equivalent to sovereign immunity?
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Anonymous Coward, 17 Jul 2009 @ 9:11pm

The Irony, a symbol of our freedom with our freedoms being attacked by intellectual property.
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Anonymous Coward, 17 Jul 2009 @ 9:13pm

Re:
The freedom to freely express a symbol of our freedom is being attacked.
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Anonymous Coward, 17 Jul 2009 @ 9:15pm

Re: Re:
What next, pictures of the statue of liberty will be attacked? What about the American flag, is that copyright too? Or the constitution.
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Scott Seiter, 17 Jul 2009 @ 11:12pm

I could've taken the same picture without much thought behind it. On a serious note, the soldiers perform a "public service" and are paid for it. The artist, therefore, should receive some sort of compensation for his "public service". Besides, the USPS has to profit in some way or another. What point is there in creating something that doesn't produce results for the maker?
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Anonymous Coward, 17 Jul 2009 @ 11:39pm

The guy spent a ton of time, taking hundreds of different photos before getting the "one" that he liked, trying to get the exact composition, angle, lighting, snow, etc. to get the image to appear as he wanted.

I like how you give this photographer credit and call his work transformative, yet when Manny Garcia also takes hundreds of photographs, you summarily dismiss his work.

C'mon Mike. You can do better.
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Joe, 18 Jul 2009 @ 3:09am

you don't get it because you don't want to
The man created it. it's his. he has a reasonable right to decide what use is made of it. "transformative" is not valid excuse for misappropriation of someone his work. stop trying to convince us that theft is accapetable. if you don't like the law change it. but by ad hominem attacks on creative people and ridiculing their right you are making yourself look foolish and irresponsible.

get over it.
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theskyrider (profile), 18 Jul 2009 @ 3:48am

Work for Hire
"The man created it. it's his. he has a reasonable right to decide what use is made of it."

He made a memorial for public display, was paid for it. That's work for hire according to all the 'big content people.'

stop trying to convince us that theft is accapetable.

Aside from the fact that you need a spell-checker 'acceptable,' the memorial is still there, nobody stole it.

That's like the original architect and builders of the World Trade Center towers trying to claim that all of the media outlets in the world owe them money for documentaries related to the attacks on said towers.

Does the sculptor get paid for every person that visits the memorial or for every photograph taken of it? I didn't think so. http://www.flickr.com/search/?q=korean+war+memorial

Oops, somebody better warn Flickr.
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Andrew, 18 Jul 2009 @ 4:41am

FRANK GAYLORD????
The sculptor is called Frank Gaylord? You insensitive Fokker!
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Jiminy Cricket (profile), 18 Jul 2009 @ 4:50am

Re:
Wow, a Mike criticism I almost actually agreed with. Except for the fact that the Obama poster was *also* transformative, so the issue isn't whether Manny's pic was transformative, or whether Mike summarily dismissed him, but whether or not transformative works should be hamstrung by copyright. Nice try there.
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bignumone (profile), 18 Jul 2009 @ 5:35am

I usually support copyright law
But it seems to me this "artist" sold his rights. If the owner of the piece wants to sue, that is a different story. But putting it out for public display is much like walking in public nude. People are going to see it all, and more than likely going to take pictures and show them around.
What is the point of art, after all? If it is to make a huge profit, I am not sure it is art anymore. Or maybe it is not just art, anyhow, but becomes a product like a toy, car, or something else mass-produced.
The artist should think of it as free advertising.
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Anonymous Coward, 18 Jul 2009 @ 6:23am

Re: Re:
No, I don't have a problem with Shepard Fairey's poster. It's this strange notion that somehow Garcia shouldn't get a copyright because there's nothing special in his photo... when Mike thinks the photo here is copyrightable.
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kirillian (profile), 18 Jul 2009 @ 7:16am

Re: Re: Re:
The problem really isn't that Mike thinks that Garcia shouldn't have a copyright. Mike has pointed out multiple times that if Shepard Fairey's poster can't be considered transformative, then he can't see Garcia's photo being any more transformative and, therefore, deserving of a copyright. Seeing Fairey's poster as transformative does not make Garcia's work any less so.

Mike's problem is with Garcia suddenly reversing his previous stance of neutrality in the issue to one of seemingly mock "hurt" that his "copyright" has been infringed - something Mike sees as indicative of a money grab.

I can't honestly say I blame him. Back on topic, I definitely agree here...this is another case of someone claiming that their copyright has been violated once they realize that there's a lot of money in it for them, even though other artists have transformed their work into something else. It's just another case of someone getting greedy - though I can't blame them too much in today's world.
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Anonymous Coward, 18 Jul 2009 @ 8:54am

Re: Heywaitaminute
I agree, if you're going to put your work in the public arena (ie: a statute on public property) the work should be considered to be in the public domain. Or else lets not have it take up space in the public arena because then it takes away peoples rights to take and distribute pictures of it. It's ridiculous for people to have to worry about copyright infringement if they are simply taking and distributing pictures (ie: on facebook or whatever) of some statute that they took in a public arena. Copyright should not supersede our basic rights to express ourselves with such pictures in public arenas.
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wnyght, 18 Jul 2009 @ 9:31am

Re: you don't get it because you don't want to
" if you don't like the law change it"

HOW? How exactly do I change a law that i do not like? Last i checked, all the letter writing to senators and threats of not reelcting them did nothing to change the laws i didn't like. Current thought: "Uncle Sam believes a penny not spent is a penny earned." If you settle on a debt, you actualy still owe the onsettled portions as income on you tax return. How do I change that B.S. law?

My point is that "the people" have not been in control of the government for a very long time. Laws are not of the people, for the people, by the people any more, so stop carelessly saying "if you dont like it, change it.
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Sneeje (profile), 18 Jul 2009 @ 9:56am

Re: you don't get it because you don't want to
Huh? Actually, the law does not support this guy's claim, which is much of the problem here.

The issue is that this guy *thinks* copyright gives him unfettered rights to decide how his work is used. That is incorrect. Copyright is a *limited* monopoly, including such limits as fair use and first sale doctrine. If his work was purchased by the memorial committee, I don't see how *he* can claim anything.
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Fairy Sheppard, 18 Jul 2009 @ 10:11am

Re: you don't get it because you don't want to
The man created it. He sold it. His rights end right there. Unless the sculpture is "on loan", even if he donated it to the memorial, he has NO further rights to that sculpture no matter WHO created it. If he wanted to maintain rights over how it or its images are used, he should have kept it. The minute it's sold or given away, he has no further rights to it, they transfer to the new owner. That new owner can then sell it, give it away, make freakin' T-shirts of it and sell them, whatever. You're the one looking foolish and irresponsible.
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Anonymous Coward, 18 Jul 2009 @ 10:23am

One thing that seems to be overlooked is that this is NOT a new lawsuit. It was filed in 2006, and a decision was rendered in 2008. Judge Wheeler ruled for the defendant (the USPS), because he found the Postal Service fairly used the sculpture in the stamp. Gaylord is now appealing, as is his right, but there's little to no chance he'll win. It's amazing that someone as old as he is (84?) can be this greedy, or maybe it's just a transposed case of "get those damned kids off my lawn"...
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Sean T Henry (profile), 18 Jul 2009 @ 10:59am

Re:
The artist who created the sculpture most probably did it under contract for that project. In doing so he would have no claim to the sculpture other than have his name on it.

If I'm a landscaper and one of my clients yard is photographed and placed in a lovely home and landscaping book with his permission. I would have no claim on the work since it was done under contract to perform the job.
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mjb5406 (profile), 18 Jul 2009 @ 11:01am

Look out...
He's probably lurking in the bushes bear the Memorial right now ready to slap a lawsuit on amy tourist who dares take a picture of HIS sculpture. Sounds like he inhaled WAY too much dust during his sculpting!
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mjb5406 (profile), 18 Jul 2009 @ 11:05am

Re: "Copyright"
But how does this relate to the USPS using a picture of the statue? First, the memorial is public... second, the statue itself was not duplicated. It's not at all like your photo or Rowell's image. It would be the same if I made a sculpture using a photo I found of, say, a bird... would the original photographer of that bird be entitled to a portion of the profit for MY creative work just because I used their photo as a model. I don't think so.
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mjb5406 (profile), 18 Jul 2009 @ 11:09am

Re: you don't get it because you don't want to
Wow... better not take pictures of the Statue of Liberty, the Washington Monument, etc. anymore. Your argument is totally off base on 2 counts... first, if this sculptor wanted full control over his work, display it in a gallery, do not donate it to a memorial. And, how does a photo of his work infringe on his copyright (if, in fact, he has one)? This is fair use, transformative, and his suit is without merit.
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mjb5406 (profile), 18 Jul 2009 @ 11:12am

The USPS shpuld settle
As far as I'm concerned, the USPS should offer to settle for $1,000,000 to be paid in stamps... not those "Forever Stamps" either... 1 cent stamps... 100,000,000 One Cent stamps!
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Anonymous Coward, 18 Jul 2009 @ 1:37pm

The questions unanswered in this one:

Who owns the statue? Was it work for hire? Did the artist donate it? Does the artist still own it (and it is only on display)?

Without knowing these things, there isn't really a way to decide who is zooming who.
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Capitalist Lion Tamer (profile), 18 Jul 2009 @ 1:45pm

Re: USPS
"Besides, the USPS has to profit in some way or another."

True. They'll make a stamp out of it and sell it, probably along with some first-day issues or posters or whatever.

But the USPS hasn't turned a profit in years.
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Marc Smith, 18 Jul 2009 @ 2:26pm

This is all stupid
This is all just stupid. If something is in public view, it's public. Period. Even photos. Must a photographer pay everyone that has anything in any picture they take, including people and works of art, including landscapes and such? If they don't they have no right to profit off of their photo. If someone takes a picture and makes it public such as in a newspaper, it's public. In the case of the memorial, it's in pubic view. It's public. If the person who did the work of art didn't want it to be public, s/he should have kept it hidden in a building or something. This is all about unbridled greed.
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Anonymous Coward, 18 Jul 2009 @ 2:35pm

Old and decided issue, http://washingtonbureau.typepad.com/law/2008/12/postal-service-stamps-out-korean-war-memorial-challe nge.html.

Doesn't anybody fact check here?
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Anonymous Coward, 18 Jul 2009 @ 2:46pm

Re: This is all stupid
Not really. Public view doesn't mean that you can profit from it. The post office will sell sets of these stamps that will never be used for postage (it is a very profitable business for the post office), thus they profit off of this artist's work. Just because it is on public display doesn't grant them commercial rights.
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Chris, 18 Jul 2009 @ 3:14pm

guy wants money
If I build a special car then sell it to someone and then the guy uses the car for a calendar, am i entitled to the profits since I created the car?
If they artist still owns the property, then he should be entitled to some compensation, but if he no longer owns the image, then he should not be entitled to any compensation. I believe he was paid to created the memorial but they are not under is possession so he shouldn't get anything.
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Anonymous Coward, 18 Jul 2009 @ 4:02pm

Mike, this article just made me remove techdirt from my google home page. Your opinion is just plain wrong, and this is the latest of your dumb articles.

Someone still CREATED the artwork, therefore OWNS the artwork. So what if it's publicly displayed? That doesn't allow OTHERS to use the artwork publicly without prior consent.

Please stop your propaganda.
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Anonymous Coward, 18 Jul 2009 @ 4:06pm

Everything ever created should be free, regardless of the conditions. Welcome to Mike's communism!
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Anonymous Coward, 18 Jul 2009 @ 4:36pm

Re: guy wants money
"If I build a special car then sell it to someone and then the guy uses the car for a calendar, am i entitled to the profits since I created the car?"

If the car was sold, then NO, you don't own it and you no longer have rights.

However, in this case, there is potential that the artist created the work and allows it to be publically displayed, but hasn't sold or donated it. So the rights are still his.

This sort of story once again goes to proving Mike's complete misunderstanding of copyright, which is why he wants to drag it down.
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Anonymous Coward, 18 Jul 2009 @ 6:25pm

Re: Re: guy wants money
"However, in this case, there is potential that the artist created the work and allows it to be publically displayed, but hasn't sold or donated it."

I highly doubt this.
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Anonymous Coward, 18 Jul 2009 @ 6:32pm

Re: Re: guy wants money
"However, in this case, there is potential that the artist created the work and allows it to be publically displayed, but hasn't sold or donated it."

While, as I said, I highly doubt this, if this is true then the the public should demand that it be taken out of the private arena. The owner can take it back and put it on his private property or he can destroy it but we don't want it on our public property if it's going to limit our rights to take and distribute pictures on public property.

"This sort of story once again goes to proving Mike's complete misunderstanding of copyright"

You have never demonstrated that he has a complete misunderstanding of copyright to begin with (so I don't know where you get the words "once again") and in this situation you have not demonstrated any such thing either.

"which is why he wants to drag it down."

Furthermore, if your understanding of copyright is correct and people can own the copyright of something in the public arena then that does supports his conclusion that copyright should be taken down even more-so than Mikes understanding of copyright.
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Anonymous Coward, 18 Jul 2009 @ 6:33pm

Re: Re: Re: guy wants money
sp/While, as I said, I highly doubt this, if this is true then the the public should demand that it be taken out of the private arena./While, as I said, I highly doubt this, if this is true then the the public should demand that it be taken out of the public arena.
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Anonymous Coward, 18 Jul 2009 @ 6:37pm

Re: Re: Re: guy wants money
Oh, and if we give it back to him and he sticks it in his back yard and later decides that he doesn't want it and can't sell it so he throws it away, he has effectively given it to the public domain and it's no longer his.
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Anonymous Coward, 18 Jul 2009 @ 6:41pm

If it's on public property it shouldn't be Intellectual property. If it's intellectual property we don't want it on our (taxpayer funded) property, take it back and stick it in your backyard.
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Anonymous Coward, 18 Jul 2009 @ 6:51pm

Re:
Basically the public arena is not a place for you to store your private goods. If you want to store your statue go rent a storage hall or something but don't dump your junk on the public arena and then take away our rights to use the space it takes up for something else and tell us we can't even take and distribute pictures of it or touch it. There should be littering laws against this sort of nonsense. He should be fined.
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Anonymous Coward, 18 Jul 2009 @ 6:54pm

Re: Re:
Or perhaps he can pay us for storing his stuff on our public property. Let him pay the government for doing so, then we can consider allowing him to use it. How much does a typical storage hall charge per month, perhaps we can charge him that.
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Gordon, 18 Jul 2009 @ 7:03pm

Re:
@ #39
Someone still CREATED the artwork, therefore OWNS the artwork. So what if it's publicly displayed? That doesn't allow OTHERS to use the artwork publicly without prior consent.

RETARD,
So far based on what's written in the article nobody knows (including you unless you are in fact the sculptor) if the sculptor was paid for the work/donated the work for public viewing.
If paid, deal done and all rights transfer to the PUBLIC since we paid for it with our tax dollars.
If donated, again deal done. It was commissioned for public display and he created it knowing this.

If in fact he still owns it and wants to get paid for it he should have kept it and put it on display privately.
Since it's in public view on public property (paid for with tax dollars) it's in the public domain.
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Anonymous Coward, 18 Jul 2009 @ 7:16pm

Re: Re:
"If in fact he still owns it and wants to get paid for it he should have kept it and put it on display privately.
Since it's in public view on public property (paid for with tax dollars) it's in the public domain."

If he owns it he should be fined for storing his stuff on our public property. The public arena is NOT your private storage place, go rent a storage hall or something.
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g, 18 Jul 2009 @ 7:22pm

Re: Re: Re:
Please tell me you're not arguing with me.
Because what you just did was completely agree with me and make my point even more firm.
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Anonymous Coward, 18 Jul 2009 @ 7:25pm

Think of it this way. When you throw something away, after it leaves your private property it's no longer yours. If you're in a restaurant and you have a cup of coffee on you, when you dispose of that cup of coffee in the trash can at the restaurant, it's no longer yours (I've seen this on the forensic files). Furthermore, if you leave it on your table and leave the restaurant it's no longer yours. Now the forensic people can take it and do forensic analysis on it or the restaurant staff can throw it away. Likewise, you can't just leave your statute on public property and expect us to store it for you. You left it there, it's no longer yours, just as if you threw trash away and it left your public property.
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Anonymous Coward, 18 Jul 2009 @ 7:25pm

Re: Re: Re: Re:
not at all.
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Anonymous Coward, 18 Jul 2009 @ 7:26pm

Re:
sp/just as if you threw trash away and it left your public property./just as if you threw trash away and it left your private property.
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Gordon, 18 Jul 2009 @ 7:36pm

Re: Re: Re: Re: Re:
That quote you took of mine wasn't one point. It was in fact 2 separate points maybe I should have separated them better, because by using those lines quoted from me then adding your lines below it. You did in fact agree with me. I'm not arguing with you now. I'm just trying to clear it up.
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CrazyTurk, 18 Jul 2009 @ 9:26pm

... ignorant fucks of the internet
First of all...
i've noticed one thing, when someone on the internet doesn't have a vaild point to argue anymore, they start to spell check people's responses to try to attack them for having an opinion... nice work ass hole, you only made your self look like an ideot (did i spell that wrong? c'mon attack me now)

You all are ASSUMING that this guy wants to get paid for the stamp being used...
I'm not bored enough to do the research, but i'm guessing that none of you have actually looked into this deep enough to know if he sold the sculpture, was hired to create it, if he still retains a copyright to it or not.
Further more,
you guys say that it should be in the public domain and that the photo is licensed... If i was to go to the Luvre in Paris and take a picture of the Mona Lisa, do you really think that i could simply sell this photo of the mona lisa without permission of the owner? I think not.
I think that he's more upset to know that the work of art he created was used without have been notified or asked if it was OK. I'm also assuming that this guys is not a shitforbrains and would realize that this would be free publicity for him and probably would have been happy enough with creditation... sculpted by Frank Gaylord...
After all if i shot a video on my own camera, of a movie playing in a theater, i should be able to sell this as my own work of art, because i shot the video?
Shit, i'm going into business... give the man a break and give him his credit.
you mean to tell me that all of you really support artist NOT getting paid for what they do.. ya'll probably also used to use napster and support the Pirate party huh?
Contradictive fucks you all are...
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Anonymous Coward, 18 Jul 2009 @ 9:29pm

Re: Re: Re:
*yawn*

Come on guys. Don't you think that some agreement has been made to provide the space for this art work? Do you honestly think he just showed up in a park and randomly dumped it there without anyone knowing?

Seriously, I hope you guys never have to fight a legal battle, because you truly are missing some of the basics of life.
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Anonymous Coward, 18 Jul 2009 @ 10:17pm

Re: Re: Re: Re:
"Don't you think that some agreement has been made to provide the space for this art work?"

In which case we need to find the person/people responsible for making such a stupid agreement on behalf of the public and make sure this person is fired or voted out of office. Then we need to have this person take his statue back to his private property and not use public property as his personal storage facility.

"Do you honestly think he just showed up in a park and randomly dumped it there without anyone knowing?"

Actually I never said that I think that but my point is that the laws should be that once he puts his property on public property his property should become public domain. We shouldn't allow a system that allows someone to store their personal property on public property as if public property is their personal storage facility. Go rent a storage hall or something. No representative of the public should make an agreement that allows for someone to use public property as their personal storage facility at no cost. Furthermore, if he is paying the government for such storage the public should know what's being paid so they can evaluate whether or not allowing this person to use public property as a storage facility is worth the money that the person is paying. I think we should charge him about what a typical storage hall would charge per month. It's just like if you throw your trash away, when it leaves your private property it's no longer yours. Likewise we shouldn't have representatives that allow people to store their private property on public property. They have storage halls for that.
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Anonymous Coward, 18 Jul 2009 @ 10:24pm

Re: Re: Re: Re:
"Don't you think that some agreement has been made to provide the space for this art work?"

I think you are completely missing the point. If such an agreement was made then the representative who made such an agreement should be fired. Representatives shouldn't allow people to use public property as their personal storage facilities. Public property isn't their storage facility.
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Anonymous Coward, 18 Jul 2009 @ 10:25pm

They are using the stamp as commercial purpose, so if the creator still legally owns it even though it's publicly displayed, he should be entitled to a part of the revenue made from it.

That's just common sense.

All the name yelling is quite entertaining. Amusing how some bad story by Mike can get everyone all worked up. Internet is so full of 12 years old now it's sad :(
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Anonymous Coward, 18 Jul 2009 @ 10:28pm

Re: Re: Re: Re: Re:
Here

http://www.publicstorage.com/#cs=t

Instead of using the public domain to store his statue he can rent a place from here. There you go.
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Anonymous Coward, 18 Jul 2009 @ 10:31pm

Here is what the law should say. It should say that anything that's being stored on public property should be assumed to be in the public domain. People can take pictures of it and distribute them as they please. Representatives should not be allowed to make stupid deals with people that allows people to store their private goods on public property. We have storage halls for that. For instance, visit http://www.publicstorage.com/ They can rent a place from there.
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Anonymous Coward, 18 Jul 2009 @ 10:42pm

Re: ... ignorant fucks of the internet
"I think that he's more upset to know that the work of art he created was used without have been notified or asked if it was OK."

I suppose I can get a candy wrapper, roll it up, and litter on public property and when a cop gives me a ticket I can say, "but it was a work of art so it belongs there. The act of rolling it up was art" and if someone takes a picture of it I can sue. I can take a car and write on it and park it in the street, call it a monumental work of art and hence disallow anyone to touch it or fine me for putting it there. I don't care if the "artist" defines it as art or not. It's on public property and hence should be considered in the public domain. Be it a candy wrapper on the ground, your trash can, or your car. And any representative that makes a deal that allows someone to use public property as their personal storage facility, be it for something someone calls art or a trash can labeled as art or trash thrown on the ground, should be fired. If it's on public property it should be considered in the public domain. That's what the law should say. Public property is no ones personal storage facility. Taking your stuff and calling it art does not make it right to store your personal stuff on public property.
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Anonymous Coward, 18 Jul 2009 @ 10:57pm

Re: ... ignorant fucks of the internet
"you guys say that it should be in the public domain and that the photo is licensed... If i was to go to the Luvre in Paris and take a picture of the Mona Lisa, do you really think that i could simply sell this photo of the mona lisa without permission of the owner?"

If the Mona Lisa is on public property then it should be considered in the public domain. Otherwise whoever owns it can take it back and store it on his/her own property. Public property is no ones personal storage facility. Visit www.publicstorage.com or something.
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Anonymous Coward, 18 Jul 2009 @ 11:21pm

Re:
"They are using the stamp as commercial purpose, so if the creator still legally owns it even though it's publicly displayed, he should be entitled to a part of the revenue made from it.

That's just common sense."

No, this is not common sense, in fact, it makes no sense. This copyright nonsense has gotten ridiculous. Based on your logic if I take a picture on public property and that picture accidentally has on it a privately owned statue then I can't put that picture on facebook because then, since facebook might indirectly be making money from that picture, facebok could be responsible for copyright infringement. Nonsense, if it's on public property it should be considered in the public domain. Public property should not be used as someones personal storage facility and any politician or otherwise that allows it to be used as such on behalf of the public should be fired.
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Anonymous Coward, 18 Jul 2009 @ 11:33pm

If you want to be a jerk about how you license a statue or piece of art then the public should be an equal jerk and make you take it off our property. publicstorage.com would be more than happy to accommodate you but it's going to cost.
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Tom Anderson, 19 Jul 2009 @ 2:19am

Re:
This comment is right on the mark. I can't take a documentary from the History Channel and digitally rework it, then sell it for myself, even if it's a great cultural work that seems like an emblem and I put a lot of effort into capturing the true spirit of the documentary.

When a memorial is desired, the licensing rights are carefully planned out. It's no big secret that images of monuments must be licensed, it's simply standard practice, so somebody in the USPS licensing department got fired over this negligence.

The USPS can't just put a picture of a famous skyline on a stamp either. Or how about a picture of a famous model? They need to get permission. It's the way it works.
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Tom Anderson, 19 Jul 2009 @ 2:43am

Re:
By this logic, all music played in public places should be free, too. As many concerts are held on public property, we should have the right to sell recordings we make of the concerts.

The people who decided to build a monument signed legal documents when they contracted the artist that said he would have the copyright for that monument. If you think that everybody "should" get the right to make money from public monuments, then you should pressure the US government to make contracts that assign the copyright to public domain. However, artists must charge more to do work under these contracts, because they sell their rights.
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Jiminy Cricket (profile), 19 Jul 2009 @ 5:18am

Re:
I don't have time to fact check, too busy disputing Anonymous Cowards.

Speaking of which, OF COURSE we fact check around here!!!
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Anonymous Coward, 19 Jul 2009 @ 6:42am

Pro Bono work does not mean I give up the rights to the works I create.
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Will Sizemore, 19 Jul 2009 @ 8:27am

I couldn't bear to read all those comments!
Look, I wanted to read all these comments but I just got sick of the repetitive and uninformed speculations.

I agree with some of you. Yes, as this was a MEMORIAL and it was ON PUBLIC DISPLAY, that the sculptor is wrong to sue for compensation. Yes, this is very possibly about greed.

But perhaps the reason he is suing is simply to preserve his dedication. What if Mr. Gaylord's intent is to preserve the authenticity of his sculpture by fighting against its commercialization? Selling the image may honor the sculpture as a favorite national treasure, but it cheapens his labor of love and his pride in knowing that he was the artist who's skill and perserverence created this image for us all to enjoy, but not to pay for.

That being said, does anyone else, besides the USPS sell the likeness of this sculpture? Did the museum obtain rights to profit from it or from images of it. I wonder if the museum sells a postcard of this sculpture, so I can stamp it with this stamp in question on the back, and send my own opinion to Mr. Gaylord, as well as to Stanford Law just because I am personally disgusted with the way we Americans treat each other.

I hate copyrights. I hate intellectual property. I hate 'artists' who hide behind these principles, too. Isn't the purpose of expression to communicate? If we don't want our 'work' appreciated, then we shouldn't make it available.

Now, that being said, I do think that an alternative would be to somehow reward artists who DO contribute in this fashion by our government trasuring the artists as well as the art.

But in the case of this Korean War Memorial, I think that the case should be dismissed and the memorial should be returned to Mr. Gaylord, and all future profits from this sculpture or its related images should be made illegal because this is certainly an unpatriotic act.

What is the opposite of patriotism? Could it be treason?
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Anonymous Coward, 19 Jul 2009 @ 8:39am

Re: Re:
"The people who decided to build a monument signed legal documents when they contracted the artist that said he would have the copyright for that monument."

First of all I highly doubt the contracts said any such thing. They probably didn't mention copyright and if it didn't the contract should be considered a sale where the rights to the statue has been given to the public.

"However, artists must charge more to do work under these contracts, because they sell their rights."

Or we can find another artist that would do it for the same price with no intellectual property. Just like with google offering anyone to create a logo for free, if one artist wants to complain about it then there are many other people who would be willing to take the place of the artist (despite the fact that some people on this blog may argue otherwise, the facts in that situation show them to be wrong). The government can put an add on Craigslist and allow anyone the opportunity to contract, many people would be glad to contract just for the publicity.
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Anonymous Coward, 19 Jul 2009 @ 8:42am

Re:
"Pro Bono work does not mean I give up the rights to the works I create."

Again, public property is not a venue for personal storage and any politician that says otherwise should be fired. www.freestorage.com will be more than glad to accommodate you but it's going to cost.
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Anonymous Coward, 19 Jul 2009 @ 8:42am

Re: Re:
Or, rather, public property is not a venue for free personal storage.
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Anonymous Coward, 19 Jul 2009 @ 8:48am

Re: Re:
"As many concerts are held on public property, we should have the right to sell recordings we make of the concerts."

The people who do concerts on public property typically pay the local government for a permit to do so. They're paying for such privileges. And if they're not they should or otherwise, yes, what's done on public property should be considered public domain (ie: copyleft or something to that extent). While people can make money from selling copyleft material (ie:Gnu-gpl) the point is that they can't restrict anyone else from freely redistributing the material as well. It's made public.
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Reddog, 19 Jul 2009 @ 8:52am

Re: "Copyright"
Sculpture is different from a photograph. It is possible to copyright a photo of something. Claiming copyright of someone else’s photograph of your sculpture is very different. You can’t claim copyright of a two dimensional representation of your three dimensional sculpture, it is a new work. This has been held by the courts for some time.
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Anonymous Coward, 19 Jul 2009 @ 9:01am

Re: Re:
" It's no big secret that images of monuments must be licensed, . . ."

Well it is a secrete to me. Could you provide a reference to that. If I take a picture of Mount Rushmore and post it to my website I need a license? I don’t think you are even close . . . A specific picture of a monument can be copyrighted, but a picture of a 3 dimensional object is a new work you have transformed a 3 dimensional object into a 3 dimensional representation.
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Anonymous Coward, 19 Jul 2009 @ 9:12am

Re: Re: Re:
Opps Last line should end with: " 2 dimensional representation." Need more coffee! The key is that transformation of a work has been recognized as by the courts for some time. What transformation means when dealing with a copyrighted picture that is “transformed” is tricky. But it is clear that a picture of a statue clearly transforms a 3D item into a 2D item which is a new work.
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Anonymous Coward, 19 Jul 2009 @ 9:48am

Re: Re: Re: Re:
The work may be new, but you need to understand that locations, buildings, and other fixed objects often require a model release for use of it's likeness in an image, movie, etc, especially when it is for commercial purposes (selling stamps is commercial).

So even if the work is transformative, there is no underlying permission to use the location to start with. Thus, you end up back at square one, used without permission.
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herodotus (profile), 19 Jul 2009 @ 10:14am

Does anyone realize that the sculptor who is the Plaintiff in this case actually lost the original suit, and that this story is about his appeal?

So the guy who said

"The man created it. it's his. he has a reasonable right to decide what use is made of it. "transformative" is not valid excuse for misappropriation of someone his work. stop trying to convince us that theft is accapetable. if you don't like the law change it."

And the other guy who said:

"Mike, this article just made me remove techdirt from my google home page. Your opinion is just plain wrong, and this is the latest of your dumb articles.

Someone still CREATED the artwork, therefore OWNS the artwork. So what if it's publicly displayed? That doesn't allow OTHERS to use the artwork publicly without prior consent.

Please stop your propaganda."

aren't arguing against Mike's 'opinion', but against the court's original verdict.

No wonder you people post anonymously. Who would want to be publicly associated with such foolish verbiage?
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Anonymous Coward, 19 Jul 2009 @ 11:07am

Re: you don't get it because you don't want to
"stop trying to convince us that theft is accapetable."

Infringement, not theft, and learn to spell.

"but by ad hominem attacks on creative people and ridiculing their right you are making yourself look foolish and irresponsible."

Mike didn't use Ad - hominem attacks (you don't seem to even know what that means) and in the very same sentence that you falsely accused him of doing so you use personal attacks, by calling him foolish and irresponsible, instead of actually addressing the issues at hand.
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Richard, 19 Jul 2009 @ 11:24am

Re: Re: ... ignorant fucks of the internet
Actually you can go to the Louvre and take a photograph of the Mona Lisa (I have several photos of works in that Gallery)
And yes the Mona Lisa is 400+ years old and therefore in the public domain - so you can sell your photograph quite legally
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afreena clotzit, 19 Jul 2009 @ 12:27pm

Should any tourist that takes a picture of it have to pay him for the privelege? I erected a very nice fence around my house. Shouldn't anyone who sees it have to pay me?
This guys a nut case.
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Mark, 19 Jul 2009 @ 1:37pm

Wow, thats crazy.
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tracker1 (profile), 19 Jul 2009 @ 1:48pm

Re: you don't get it because you don't want to
He imho lost these rights when he sold the original work, especially for display in public. You sell the original work, you sell your copyrights, that's my opinion of shit like this.
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Dustin, 19 Jul 2009 @ 3:32pm

Re:
"Someone still CREATED the artwork, therefore OWNS the artwork"

I design and build custom computers and electronics packages for a living. My wife designs and builds custom furniture and cookware.

This man's sculpture is no different, it's a products. Our products are purchased both for their functionality and their aesthetic appeal. They're works of art. By your logic any photo including any of our products is copyright infringement and we have the right to sue.

You see the problem here? Because once we sell a product (especially one custom commissioned), we no longer have any claim of ownership. He's no different. He was paid for his work, and paid for his sculpture. He has no claim, especially against trans formative works like photographs.
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Anonymous Coward, 19 Jul 2009 @ 4:06pm

From the article, http://washingtonbureau.typepad.com/law/2008/12/postal-service-stamps-out-korean-war-memorial-challe nge.html mentioned above: "Judge Thomas Wheeler determined that Gaylord is the sole copyright holder on The Column. Nonetheless, Wheeler concluded that the stamp was itself a "transformative" work in which the photographer who took the picture of The Column in essence created a new work. Moreover, the judge determined the stamp is unlikely to financially harm Gaylord's ability to profit from his enduring copyright."
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Anonymous Coward, 19 Jul 2009 @ 5:02pm

Re:
The postal service should remove the picture from the stamp and replace it with another one just so the sculpture can lose publicity. Furthermore the government should give the picture back.
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Anonymous Coward, 19 Jul 2009 @ 5:02pm

Re: Re:
sp/Furthermore the government should give the picture back./Furthermore the government should give the statue back.
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NWPM, 19 Jul 2009 @ 6:00pm

Apparently the artist hasn't been reading the paper and has no idea that the USPS has NO money!!!
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Stumpy, 19 Jul 2009 @ 6:30pm

When the Postal Service issued a stamp using a photograph taken by another individual of his work, Gaylord sued and demanded 10 percent of the revenues from sales of the stamps. The photographer was paid $1500, Gaylord nothing.

On Dec. 22, the U.S. Court of Federal Claims ruled against Gaylord and in favor of the Postal Service.

It's a fantastic memorial,to bad Frank has to be so greedy!
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Anonymous Coward, 19 Jul 2009 @ 9:07pm

Re: Re:
The Postal Service licensed the actual photo, but the sculptor who made the memorial itself claims that his copyrights were violated.
Seems to me that if the photo is considered a new work, then the fact that the USPS licensed the photo to begin with should be good enough.
When a memorial is desired, the licensing rights are carefully planned out.
And who owns that license? I would assume the tax paying citizens who paid for it do don't they? If that's the case, as it should be with ALL public memorials that are paid for by the tax payers, then why is this schmuck suing anyone? Meh...
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Mike Masnick (profile), 19 Jul 2009 @ 9:11pm

Re:
I like how you give this photographer credit and call his work transformative, yet when Manny Garcia also takes hundreds of photographs, you summarily dismiss his work.

I did no such thing.

First, the question is whether the derivative work is fair use. In both cases, I noted that it was and explained why. You seem to be comparing the derivative work in this story with the original work in the first story -- which is comparing apples and oranges. No one is questioning whether or not the photograph in this case deserves copyright.

The point of discussing the angles and the time and the composition was to show that it wasn't just a random snapshot of the statues, but an attempt to make it appear like something unique.

There is no inconsistency at all.
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Mike Masnick (profile), 19 Jul 2009 @ 9:16pm

Re: you don't get it because you don't want to
The man created it. it's his. he has a reasonable right to decide what use is made of it.

That's not what the law says.

"transformative" is not valid excuse for misappropriation of someone his work.

Actually, the laws says it is. Why would you suggest otherwise?

if you don't like the law change it. but by ad hominem attacks on creative people and ridiculing their right you are making yourself look foolish and irresponsible.

The only one looking foolish is the person suggesting that copyright grants you total control and that there is no fair use for transformative works. If you don't like *that* change the laws, rather than an ad hominem attacks against folks here.

Thanks.
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Mike Masnick (profile), 19 Jul 2009 @ 9:17pm

Re:
Old and decided issue, http://washingtonbureau.typepad.com/law/2008/12/postal-service-stamps-out-korean-war-memorial-challe nge.html.

Doesn't anybody fact check here?

The case is on appeal, and that's why we wrote about it. We were linking to a brief in the new case.

So, yes, we fact checked. Did you?
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Mike Masnick (profile), 19 Jul 2009 @ 9:22pm

Re:
Mike, this article just made me remove techdirt from my google home page. Your opinion is just plain wrong, and this is the latest of your dumb articles.

Opinions can not be wrong. Facts may be, and an opinion based on faulty facts is problematic, but you do not show how I got any facts wrong. Instead, it appears that you got your facts wrong.

Someone still CREATED the artwork, therefore OWNS the artwork.

Yes, the US gov't owns the artwork. The designer owns the copyright. Do you know what the difference is, because you seem to be implying you don't.

So what if it's publicly displayed? That doesn't allow OTHERS to use the artwork publicly without prior consent.

Indeed. Nor did I say it did. You really ought to be careful to direct your criticism towards what I actually did say.

My specific discussion was on whether or not this is fair use -- which is clearly encoded in the law, even if someone CREATED the work and OWNS it. Are you claiming that I am lying about fair use?

Please stop your propaganda.

How is it propaganda to point out the legitimate rationale for fair use?
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Mike Masnick (profile), 19 Jul 2009 @ 9:24pm

Re:
Everything ever created should be free, regardless of the conditions. Welcome to Mike's communism!

Weird. Never said anything close to that. In fact, I quite often talk about what you should be charging for, because not everything should be free at all.
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Mike Masnick (profile), 19 Jul 2009 @ 9:29pm

Re:
They are using the stamp as commercial purpose, so if the creator still legally owns it even though it's publicly displayed, he should be entitled to a part of the revenue made from it.

That's just common sense.

It's not common sense at all if you understand fair use.
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annonymous coward, 19 Jul 2009 @ 9:54pm

Re: Re:
this guy "annonymous coward" has far too much time on his hands.
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Fsm, 19 Jul 2009 @ 11:06pm

Re: public storage guy...
Whoever the anon spamming the 'public property' argument really needs to find a new website to hang out on. Arguing with nobody half a dozen times must get old...
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Jiminy Cricket (profile), 19 Jul 2009 @ 11:40pm

Re: Re: you don't get it because you don't want to
I disagree with you on one point Mike:

"transformative" is not valid excuse for misappropriation of someone his work.

"Actually, the laws says it is.
Why would you suggest otherwise?"

It isn't "mis-"appropriation, it is properly lawful appropriation. Semantics, of course, but the law is the law, until it isn't anymore :)
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Anonymous Coward, 19 Jul 2009 @ 11:56pm

Re: Re: Re:
AC is the name that automatically fills in whenever someone leaves a comment and the name field is left blank, usually because they are lazy, or can't come up with a name to credit it to.

Anonymous Coward is probably over 9000 people. It could be anyone.
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Anonymous Coward, 20 Jul 2009 @ 12:14am

It is a PUBLIC SPACE
"locations, buildings, and other fixed objects often require a model release"

Uhm no they don't! Please quote a law that requires such a thing! Hint there isn't one. They are in public view commercial use does not matter. If they don't want someone to take a picture of their building they better put them literally under wraps. The only reason you might need a release would be due to a trademark being visible, but even that usually isn't required, unless it being visible might lead to confusion about the relationship between the publisher and the trademark owner.

"So even if the work is transformative, there is no underlying permission to use the location to start with."

There is permission to use the space, it is a PUBLIC SPACE. That means implicitly that the public can use the space. So you are saying the artist would have to grant me magical permission to visit a public space to view and take a picture of his art work which he agreed to create to be placed as a PUBLIC merorial? Explain how that works, never seen that in action before. This is not a private museum.
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Anonymous Coward, 20 Jul 2009 @ 12:15am

Re: Re: public storage guy...
Public Storage makes sense. Why should it be granted a Government Monoply unless it can be shown on special days, like the National Dog Pee Day, which perhaps in my Religion is celebrated the third Tuesday in July.

Like Fine China, let's put it out only for special occasions.
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Anonymous Coward, 20 Jul 2009 @ 12:26am

Public View Does mean you can profit from them
So you are telling me that when a picture of a broad landscape is taken the photographer has to get permission from each individual land owner to sell that picture? Hmm, that would seem like a very difficult task. What about a picture taken from an airplane now that would be hard OOOH what about one take from space . . . boy that would be REALLY REALLY hard!

Sorry the law does not support you opinions no matter how much you like them.
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Anonymous Coward, 20 Jul 2009 @ 1:16am

Pictures of people
“Or how about a picture of a famous model? They need to get permission.”

They do not necessarily need approval from the famous model. It depends on the circumstances around how the picture was taken. If the photograph did not take the picture as work-for-hire he would have rights on the picture. In that case they only have to get permission from the photographer who created the picture. However, if it is a truly famous model they or their agency retain more control over their image as part of the work contract for the photo shoot, i.e. the photographer is just a hired hand.

Also, there is a distinction made between famous people and private citizens when it comes to taking pictures of them and publishing them. If you photograph a private citizen you have to get permission from them to publish the photo. If you take a picture of a “famous” person you are not required to have permission as they are already known to the public. Please see the latest issue of your favorite tabloid magazine, they don’t get approval from the clebs to publish the most interesting shots and many times the subject is on private property even inside of a private dewelling.

If they aren’t too particular about the picture they wanted to use the could send a photographer out to get a picture of the famous model on the sidewalk somewhere.
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Buddy Rydell, 20 Jul 2009 @ 1:50am

Re:
We don't know for sure if he's a "Nut Case". A full evaluation is needed to determine that. More often than not, issues pertaining to an absent male role model early in life seem to manifest themselves during the subjects mid-to-adult life. These subjects would normally be that of sex, masturbation, flatulence, and the oddities relating to male-to-male procreation.

Overall, this phenomenon can affect a person's ability to function positively within society. However, without a positive role model to share and discuss these four important topics, and the "ability to vent", many are left unable to understand the concept of "self control."

However, to the Creative Mind, this may result in soliciting lawyers, who for $140 an hour will talk to you about the weather, and stroking your ego about how the Andy WARHOL Museum of the arts will give you your 15 minutes of fame.

The interwebs is an amazing place. It's the world's pacifier.

Talk More, and perhaps meet a living Warhol outside of the legal system. Tell them you're story.

It puts things into perspective.
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hegemon13, 20 Jul 2009 @ 7:23am

Re: I couldn't bear to read all those comments!
"But in the case of this Korean War Memorial, I think that the case should be dismissed and the memorial should be returned to Mr. Gaylord, and all future profits from this sculpture or its related images should be made illegal because this is certainly an unpatriotic act."

Yeah, great idea. Everything deemed unpatriotic by guys named Will Sizemore should be deemed immediately illegal, and we should be willing to abandon existing, documented laws (like copyright laws and fair use) in order to uphold Will's subjective brand of patriotism.

"What is the opposite of patriotism? Could it be treason?"

Nope. Nice try, though.

Ultimately, the only truly unpatriotic thing in your rant is that you think we should censor speech and expression based on a subjective view of it's "patriotic" value. That, truly subverts everything our Constitution represents. You are the unpatriotic one, who has no regard for the freedoms your country imparts. Based on your views above, you would be right at home in Nazi Germany.
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Clueby4, 20 Jul 2009 @ 4:51pm

Work for hire
How anyone can "think" a public memorial isn't work for hire is beyond me.
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Sculptor, 21 Jul 2009 @ 6:26am

Re: I usually support copyright law
I agree and I'm a sculptor. He sold it. If he made it and put it in his front yard and this happened, fine. It's not his anymore. He needs to let it go....
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sculpt123 (profile), 15 Aug 2009 @ 2:32am

Not a work for hire
I hope to clarify...

I worked with the sculptor Frank Gaylord on this project. He applied and was given the copyright for his sculptural composition, models, sketches of the Korean Soldiers in DC, back when he began the project.
He even had trouble with the architects trying to take the copyright away from him, even to the point of threatening him not to pay him if he didn't give it to them. Well, he did not give up the copyright and he finally got paid.

In regard to whether it is a work for hire...I have spoken to lawyers about this with my own sculpture work.
He was paid and awarded a commission to design, create and have the sculptures fabricated in stainless steel. He didn't work for hire as the concepts and designs were originally created in his VT Studio by him and was agreed upon by the DC Committee. They agreed to "his designs" and "his style" of sculpture. Even with any modifications they were his changes and once again they agreed to his changes.

A work for hire would suggest that the artist was for example, paid by the hour, worked from someone else's studio, design or models and signed away his copyright away.
Once you create it, you own it! Unless you sign your rights away. Again they agreed to his style and workmanship.

Most importantly!!! In my opinion, if the committee didn't have him sign an agreement of noncompete, then his copyright should not be in question. I can't believe the DC commission and Carter Brown didn't see this coming. Realize every contract is different.

Certainly even with these rules in place, it is still difficult for any artist to defend such a copyright law since there are so many people that visit the sculpture daily and doing who knows what with their images. It would take substantial funds to go after every parasite out there. The copyright law is there to protect the creativity of the individual artist. Without this right anyone can steal your idea and make a profit from it. We live in the USA fortunately and they haven't yet taken this away from us.

In the case of the stamp, perhaps the judge felt there was no major financial damage due the artist, however the stamp maker should have first contacted the sculptor with his idea. He didn't see the artist's name on each of the sculptures? The artist deserves at least that much respect and recognition.
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Roberta, 2 Dec 2009 @ 5:36pm

Re: Heywaitaminute
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Anonymous Coward, 14 Nov 2010 @ 5:06am

Re:
Just shows your ignorance. The law is the law and he has the copyrights. It is a product of his mind and the GOVERNMENT gave him the rights to it.
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