US Postage Stamp Found To Be Infringing On Copyright Over Statues In US Korean War Memorial

from the so-much-wrong-with-this dept

Fri, Feb 26th 2010 11:27am — Mike Masnick

Last year, we wrote about the appeal in a case involving a US postage stamp which was based on a photograph of the US's Korean War Memorial in Washington DC. You can see the sculpture and the stamp below:

There were a variety of issues involved in the case, including who actually owned the copyright, but in the end, the interesting question is whether or not this was fair use. The lower court had ruled that this was clearly quite transformative, different in nature, and did not harm the commercial value of the original work (which even the sculptor admitted). Thus it was fair use. To us, and many other experts in fair use, it seemed hard to question that logic, but when it comes to copyright, you can always be surprised by how judges interpret the law.

The Federal Circuit has ruled on the appeal and stunningly decided that this isn't fair use, claiming that it's not, in fact, transformative. I'm somewhat amazed -- as is law professor Peter Friedman in the post linked here. The two works are quite clearly extremely different, but the court felt that since they both were designed to honor soldiers killed in the Korean War, it couldn't be seen as transformative. The fact that the photographer took hundreds of images before settling on this one apparently didn't matter. On top of that, the fact that the snow totally changes the character of the image was dismissed by the court as being just "nature's decision." Update: That "nature's decision" line was really bugging me, and Friedman has updated his post to show it's bugging him too, so I wanted to write a bit more. If "nature's decision" makes something non-copyrightable, then it can be argued that all nature photography is not covered by copyright -- which goes against pretty much every precedent out there. It's hard to see how CAFC can make this argument.

While there were other discussions over who actually owned the copyright (the government claimed it should jointly hold it, since it had a lot of input in the memorial) and whether or not the photograph should not be subject to the copyright on the sculptures because architectural works can't have their copyrights cover photographs of buildings (both courts noted that a sculpture is not an architectural work), there's a much bigger issue here: why the hell did the government ever agree to build a public memorial and not get all of the rights associated with the memorial? This omission seems like a stunning failure of the government in creating this memorial in the first place. We've seen plenty of similar cases, involving copyright lawsuits over public displays of artwork -- and they all seem equally ridiculous from a common sense viewpoint. If you're commissioning a public piece of artwork, shouldn't you also make sure you get all the rights associated with it? Leaving them with the artist, and then displaying the artwork in public creates a massive sense of confusion for pretty much everyone. Your average man on the street assumes it's legal to take photographs of public pieces of artwork and to then do what they want with them. It's hard to think of any public policy rationale that would explain why the opposite is true -- and yet, that appears where things stand.

Rulings like this should be quite scary for both amateur and professional photographers. If you photograph things that are covered by copyright, you may be infringing. It's yet another scenario of "accidental infringement" that clearly was never intended to be covered by copyright law.

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Filed Under: copyright, fair use, korean war memorial, postage stamps, usps

26 Comments

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dave blevins, 26 Feb 2010 @ 11:31am

Gosh, the judge must have gotten his law degree at the University of RIAA.
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aguywhoneedstenbucks (profile), 26 Feb 2010 @ 11:57am

Why wouldn't it be a work for hire?
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Anonymous Coward, 26 Feb 2010 @ 12:08pm

Anyone else
So if anyone else happened to take a picture from that spot, they should be able to get compensated as well?

Or perhaps any other photographer who took a picture before this photographer should get the compensation.
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DB, 26 Feb 2010 @ 12:09pm

Anyone else
So if anyone else happened to take a picture from that spot, they should be able to get compensated as well?

Or perhaps any other photographer who took a picture before this photographer should get the compensation.
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HUU, 26 Feb 2010 @ 12:10pm

I would presume that the original artist who created the memorial would be honored to have the memorial be selected for a stamp. But maybe the sculptor is not happy with the memorial and does not want it to displayed?
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yozoo, 26 Feb 2010 @ 12:15pm

"nature's decision"
So can I start selling Ansel Adams prints as my own?
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Robert J, 26 Feb 2010 @ 12:18pm

Thank you
Thank you for including case and legal details in this post. It has reduced most of the uninformed gossip and clutter we see in so many posts on this site. Keep up the good work!
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Matthew Cruse (profile), 26 Feb 2010 @ 12:22pm

Definition
From Dictionary.com Trans�form�
1.to change in form, appearance, or structure; metamorphose.
2.to change in condition, nature, or character; convert.
3.to change into another substance; transmute.
7.to undergo a change in form, appearance, or character; become transformed.
Related forms:
trans�form�a�tive, adjective
Seems pretty clear to me that to change from a sculpture to a photograph to a stamp meets the definition of changing in form, and that adding the snow meets the definition of changing in appearance. But I guess that common sense and plain language are not compatible with the law.
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another mike (profile), 26 Feb 2010 @ 12:33pm

i might like this decision
Thinking a bit on this "nature's decision" precedent CAFC just set, I think I'm in favor of it. If "nature's decision" makes the photo non-copyrightable, then they have just placed all outdoor photography and natural lighting conditions into the public domain. It will have to wait for another accidental infringement case to cite this one as a precedent, though. If this sticks, that is; and that's a big if.
Losing copyright protection on "outdoor nudes" photography is unfortunate because some of that is really beautiful. But in exchange, we've just gained a lot of clarification and put a long-awaited upper bounds on copyright maximalism. Who worries that an element of their photo may be infringing if anybody just walking by can see the same thing? That's just silly. Of course, now that we're discussing it, CAFC will realize the mistake they just made and will reverse their decision to appease the copyright expansionists.
Until then, this is a boon for photographers everywhere.
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jdub (profile), 26 Feb 2010 @ 12:33pm

Re: Definition
Your forgetting law has it's own language that is incomprehensible to the rest of the world, which is why when these ridiculous rulings come out, we just shake our head in disbelief. Lol.
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:Lobo Santo (profile), 26 Feb 2010 @ 12:34pm

Re: Definition
If common sense and plain language were compatible with the law, there would be chaos, anarchy!
; P
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Anonymous Coward, 26 Feb 2010 @ 12:40pm

I have a few photographs of that monument from when I was in DC a couple years ago. Perhaps I should post links to them to see if I can attract attention and a copyright suit.

Also when considering the commercial value of the work are we supposed to believe that it would potentially be sold to another government or a private collector rather than being maintained in perpetuity as a memorial?
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another mike (profile), 26 Feb 2010 @ 12:58pm

back to the drawing board?
I mentioned the outdoor nudes genre because that's the only one I could think of where copyright had some meaning. I didn't think about the point yozoo brought up when writing my comment. Without copyright, there could be rampant plagiarism of famous photographers like Ansel Adams and John Muir.
Although, like other cases of plagiarism, I don't think it would be that much of an issue. Adams is a famous photographer with many well-known works. Attempting to pass them off as one's own would be readily found out and the liar would lose their reputation. A budding new photog, without copyright protection on their work or a reputation to bank on, might have to look into other business models while they build their rep. That can be done; they can bank on their expertise at wielding a camera instead of selling the prints. Get paid for capturing the scene; after that it's free copies just like in other content industries.
It isn't like their wouldn't be any more photographs either. I hardly think securing copyright protection was the inspiration that drove the great photographers of the 20th century.
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senshikaze (profile), 26 Feb 2010 @ 1:05pm

you know, i really like the stamp. Was it taken in the Korean War, or was it mimicking the monument? that isn't readily obvious.

and isn't everything that is copyrighted by the gov automatically in the public domain?
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Jennifer, 26 Feb 2010 @ 2:39pm

Simple question ...
Why couldn't the government/US Mint/whoever prints stamps just compensate the sculptor for the use of the image, and be done with it?
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Anonymous Coward, 26 Feb 2010 @ 2:43pm

"US Postage Stamp Found To Be Infringing On Copyright Over Statues In US Korean War Memorial"

If it's on public property it should automatically be in the public domain. Public property is not your personal storage facility to store your private property on. I'm sure www.publicstorage.com (or the Korean equivalent) would be more than glad to accommodate you.
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OneNemesis, 26 Feb 2010 @ 2:55pm

Hired and Paid
It seems to me that the "artist" was hired and paid for his work. Where I used to work, that meant that the company owned the copyright, not me. In this case, it seems that the people of the United States, through some organization, hired the artist and paid him for the work, so why don't we own the copyright?
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Mike Ashton (profile), 26 Feb 2010 @ 3:07pm

Fair Use?
First I do not believe there is any regulation to who can view the "PUBLIC Memorial" and photograph it.
Second I paid for it and so did every tax paying American.
We own it not the artist. The use of the images of the Statue of Liberty, Iwo Jima Flag Raising, The Lincoln Memorial, and Mt. Rushmore have all been used as U.S. Postage Stamps and therefore set a precedent for usage of "PUBLIC Memorials" on U.S. Postage Stamps, not some group of nitwits that can only define life by what you CAN'T do.
The intent of the copyright laws is to keep "people and corporations" from making profit on an individuals private efforts. The Stamp in question has a value of 37 cents, as is the common price of a stamp. If the stamp was being sold for $10.00 each then you could assert that someone was making a profit. It will probably be 20 years before the value increases to that point if it ever does.
I suggest the artist grow up and get on with life. He had his 15 minutes of fame, further time in the "lime light" may prove to be his undoing and cause him to be scrutinized by the public and the press bringing about an end to his carrier because no one will buy his art.
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Rekrul, 26 Feb 2010 @ 3:53pm

Why both trying to do anything in the creative field today? You can't take photos of anything, or paint anything, without someone somewhere claiming that you're infringing their copyright, so why bother?
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FarSide, 26 Feb 2010 @ 4:19pm

Re: Anyone else
Just to clarify, the USPS commissioned the photo - the copyright is claimed by the sculptor, not the photographer.

(It wasn't clear to me from this article, but it's more explicit in the original)
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Anonymous Coward, 26 Feb 2010 @ 4:24pm

Re:
I am incapable of creating work based off of the cultural artifacts of my childhood, thanks to copyright. I'm an artist who would love to create a comic book collage.

Not allowed, unfortunately. Need a license. It's copyright infringement in my country. I certainly couldn't sell copies of the final piece!

"I thought you were an artist, not a thief?!?"

Copyright sure protects the progress of the arts. Limited time, for sure. Artists shouldn't be using slices of their cultural life to communicate with others! Especially if it's over 50 years old! That's outrageous! What's next?

Artists are always trying to screw content-owning corporations of their rightful money.

Greedy artists.
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ChurchHatesTucker (profile), 26 Feb 2010 @ 7:15pm

Re: Simple question ...
"Why couldn't the government/US Mint/whoever prints stamps just compensate the sculptor for the use of the image, and be done with it?"

Then we should charge rent to the sculptor for running a money-making enterprise on our (the public's) property.
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Devonavar (profile), 27 Feb 2010 @ 12:10am

A slip of the tongue?
If you're commissioning a public piece of artwork, shouldn't you also make sure you get all the rights associated with it?

I believe this should read "If you're commissioning a public piece of artwork, shouldn't you also make sure the public gets all the rights associated with it?"

And by public, I mean this should automatically end up in the public domain. It shouldn't end up in the possession of the government, and it shouldn't end up in the possession of the benefactor.
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Dementia (profile), 27 Feb 2010 @ 8:32am

When discussing the Federal Government of the United States, anything the government owns the copyright on, is automatically in the public domain. In this instance, apparently the contract issued when the work was commissioned left out the fact that the government should get full copyright on the work. Personally, I believe that it should be a given that any work done on commission, should be classified as a work for hire and the paying entity should receive the full copyright, but what do I know?
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Damon_ZOGG (profile), 28 Feb 2010 @ 5:16pm

"..Copyright Over Statues In US Korean War Memorial"
The creator of the US Korean War Memorial has disgraced those to whom it was dedicated. As well as made the memorial itself a commercial farce. Designed first and foremost for commerce and copyright law abuse. }:P
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David Sanger (profile), 3 Mar 2010 @ 4:10pm

Amazon
Thanks to the eagle eye of Leila Boujnane, CEO of Idee, The Visual Search Company, and their clever software at www.tineye.com there's another use not talked about:

The same photo is featured on the cover of Dog Company Six by Edwin Howard Simmons

see http://j.mp/b268JX
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