Postal Service Could Be On The Hook For Millions For Daring To Memorialize The Korean War Memorial
from the it-should-have-been-$0 dept
A few years back, we wrote about how a sculptor who had been contracted by the US government to create the Korean War Memorial in Washington DC was suing the US Postal Service because it had released a stamp using a photograph of the Memorial. There were all sorts of issues with this, starting with the fact that the US government should never commission a monument in which it does not also get the copyright. Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a singleThat said, the case has continued, as the follow up fight was about how much the sculptor, Frank Gaylord, should get. The district court looked at typical licensing deals from the US Postal Service and realized they usually pay a couple thousand dollars. The highest amount it could find was $5,000, so they awarded him that. Gaylord appealed, asking for 10% of all revenue from the stamp, which he estimated would be around $3 million on the $30.2 million in revenue made already. That's a pretty big difference. CAFC has once again sided with him saying that the lower court was wrong to just award him $5,000, without taking into consideration how much Gaylord might have wanted to license the work for in the first place. The lower court will now have to reconsider, and the US taxpayer may have to pay this guy a ton of money yet again.
So, can we convince the federal government of a rather simple idea going forward: if you have someone create a memorial or statue or piece of artwork for public display, part of the deal is they put the whole thing into the public domain. If they don't like it, find another artist. The fact that this work is not in the public domain is a travesty. The fact that the photo is not considered fair use on the sculpture in the first place is a travesty. The fact that he may end up getting another batch of money for this is a travesty. And all of it could have been avoided if someone (anyone) in the US government realized ahead of time that artwork created for public display should belong to the public.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cafc, frank gaylord, korean war memorial, photography, transformative work, usps
Reader Comments
Subscribe: RSS
View by: Time | Thread
This has me thoroughly confused
I really don't get this....
[ link to this | view in chronology ]
Re: This has me thoroughly confused
[ link to this | view in chronology ]
Re: This has me thoroughly confused
[ link to this | view in chronology ]
the biggest travesty of all is the fact that copyright exists in the first place. scrap the whole damn thing and let's get on with life!
[ link to this | view in chronology ]
Re: Flippit
We might just end up with a "Scrap all life, let's preserve copyright!" campaign. Do Not Want.
[ link to this | view in chronology ]
Re: Re: Flippit
[ link to this | view in chronology ]
Re: Re: Flippit
would have clicked 'funny' but past evidence supports the idea that yes, they Are that stupid...
[ link to this | view in chronology ]
So what do we do now?
Or does this whole thing need to get ripped out of the ground post-haste and melted down into collectible coins?
In either case I think every taxpayer in the country should go take a deuce on Frank Gaylord's front lawn.
[ link to this | view in chronology ]
gaylord, a great big pr$ck
[ link to this | view in chronology ]
Re: gaylord, a great big pr$ck
[ link to this | view in chronology ]
Re: gaylord, a great big pr$ck
[ link to this | view in chronology ]
Re: Re: gaylord, a great big pr$ck
[ link to this | view in chronology ]
Re: Re: gaylord, a great big pr$ck
Or do you think that fighting in a war gives someone carte blanche to profit off of other soldiers in whatever way he sees fit? It doesn't. I don't care if he personally shot Hitler, that's no reason he should be able to ransom a war memorial for several million dollars. This is wrong.
[ link to this | view in chronology ]
pointless to trust in justice when money is involved
Yeah we got our monument, but apparently we don't own it.
The percentage this guy is asking for....is enough for me, to trashcan the stamps, knock his work into the sea and go hire someone else to replace the sculpture.
There, nobody gets anything asshole, go home, and try to scam some other country. That's what you get for involving a lawyer in what should have been a cut and dry purchase, just to gouge the public satisfy your greed.
[ link to this | view in chronology ]
Re: pointless to trust in justice when money is involved
Yeah, as far as I'm concerned, burn the stamps, fine the guy until he removes his property from public land, commission a new monument and new stamps. It's probably cheaper than the millions the guy wants.
[ link to this | view in chronology ]
Makes no sense
If the artist owns the copyright and doesn't like it being photographed, the government is just going to have to remove it, cover it up or bury it.
Sounds like a good idea. Commission a new monument from someone less greedy.
[ link to this | view in chronology ]
Re: Makes no sense
" This monument has been removed due to copyright infringement at the request of the owner Frank Gaylord."
[ link to this | view in chronology ]
Re: Re: Makes no sense
The commission of this monument was to memorialize the sacrifices made by our Service Members during the Koren War. This Frank Gaylor should be in the running for Douche Bag of the year award(yes I know there are many who are likely more deserving). As for the Fed...this is the typical myopic manner in which they handle many things. They see a short term goal, but never think of the long term ramifications. Way to go Frank "Douche Bag" Gaylord and way to fail US Gov.
[ link to this | view in chronology ]
prior art
[ link to this | view in chronology ]
So what happens..
[ link to this | view in chronology ]
It's on public land
[ link to this | view in chronology ]
Idiotic
[ link to this | view in chronology ]
If the above is a YES, then the actual stamp is not being used for commercial purposes since the actual enterprise (USPS) whether they are creating money from the stamp (profit) or not is irrelevant. They are a non-profit government entity.
Also Mike, your sentence of ""Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single photographer has control over it?" is wrong for the same reasons.
Anyone who photographs the site actually retains the copyright in their OWN photos and would only have to pay a minimal fee if they use the artwork photographed for commercial purposes, even then the copyright in the photo still retains with the photographer and the artwork is just the 'subject' (if that) of that new copyrighted work transformed onto an image.
The Sydney Opera House corporation and other nutters that own artwork and hate the idea of them not controlling everything hate this concept. Tuff!
*waits for the trolls who don't understand the legal concept of commercial usage to bleat inanities as per normal*
[ link to this | view in chronology ]
Re:
If that's true, why is the artist suing for a percentage of profits rather than, say, the owed fee plus court costs? Why is profits the base amount used to determine the amount he's suing for, rather than the fee he was owed or some multiple there of? He wasn't entitled to any of that profit before, if that was the case.
[ link to this | view in chronology ]
Re: Re:
Though I'm not sure the publicity the guy is getting or about to get will be for the better. he might find out his entitlement to a public flogging of his mores and character is what is really going to happen
[ link to this | view in chronology ]
Re: Re: Re:
ROFL! Is that the copyright equivalent of getting his panties in a twist?
Okay, I know it was a typo, but it made me laugh!
[ link to this | view in chronology ]
Re: Re:
After all the price you pay for the stamp is for the stamp itself plus the delivery of a piece of mail.
[ link to this | view in chronology ]
Re:
That was a typo. I meant to say the artist who created the sculpture has control over it, not the photographer. Fixed.
[ link to this | view in chronology ]
If it's outside and you don't have to pay admission to see it, you should be able to take pictures, paint, draw, take impressions, or whatever. Copyright has it's uses, but over the years, there have been too many restrictive changes made that it's actually hurting what it's supposed to protect these days.
[ link to this | view in chronology ]
Re:
Amsterdam has those signs everywhere, and they mean nothing and have no legal justification. The only justification they might have is within a private palace, though they CANNOT stop you taking the photo, or delete it afterwards etc. only remove you from the premises.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
By protecting his copyright and suing an the Postal Service, which is already having financial problems, he'll be helping to create "job growth" by forcing more layoffs... (I'm sure the MPAA/RIAA believe this. Negative job growth is still "job growth" but perhaps not in the right direction =P)
[ link to this | view in chronology ]
Re:
1. Discover the economy has a net job loss over the past year.
2. Give information to politician
3. Have politician spin the loss into a gain. It's not a net loss, it's a negative net gain in jobs created!
4. Get a journalist to make a sensation headline through sound bite. "Officials state the economy has a 'Net gain in jobs created!'"
5. Voila! Problem solved!
In this example there is also no ??? step towards profit, as the politician has already lined his pocket multiple times. =P
[ link to this | view in chronology ]
Re: Re:
The USPO, by adhering to strict copyright laws, has contributed over $3 million to the private sector, and several million to the legal sector - promoting American job growth and adding to the American economy.
And that is how copyright saves jobs and helps the economy. :/
[ link to this | view in chronology ]
[ link to this | view in chronology ]
So many problems with this
Second, even if that wasn't true, how does any copyright exist? Government work financed by taxpayer money always goes into the public domain with no copyright.
So it's legally impossible twice over for this guy to hold a copyright in the first place. Seems to me the post office needs to file a copyright fraud counterclaim...
[ link to this | view in chronology ]
Re: So many problems with this
It should, but that only counts in the case of someone who is working for the government. When I was a government contractor, many moons ago, we were paid by the government to do stuff, and we gave them what we produced on their dime, but then we turned around and sold the same product to others without a blink. We owned what we produced, and saw the government as an initial investor in our success.
And I hated the thought of it, and routinely argued against it, but that is the way it was. It is the same reason why universities funded with taxpayer money, or medical companies funded with taxpayer money, can turn around and sell their research for top dollar.
[ link to this | view in chronology ]
Re: Re: So many problems with this
Which is but one of many reasons why patents and copyrights generally reside with contractors; i.e., the more they sell to others the lower the procurement costs paid by the USG on subsequent purchases.
[ link to this | view in chronology ]
Re: Re: So many problems with this
Which is but one of many reasons why patents and copyrights generally reside with contractors; i.e., the more they sell to others the lower the procurement costs paid by the USG on subsequent purchases.
[ link to this | view in chronology ]
Re: Re: So many problems with this
Just because it is what people do, doesn't make it right.
[ link to this | view in chronology ]
Re: Re: So many problems with this
The exclusivity rights should have ended the moment he sold the work of art. It's insane to be paid every time something you sold changes hands or is exploited in the least bit. Nintendo owns the patents to my old Gameboy Advance. That doesn't mean that I have to pay them when I sell it or that I can't sell photos of it. Imagine Andy Warhol nowadays - Campbell would claim it wasn't a parody and thus following the same reason as Frank did, they'd sue for 'derivative works'.
[ link to this | view in chronology ]
Re: Re: So many problems with this
Many transactions with the government are purely commercial, and we should not encourage the great beast to abuse its dominant bargaining position in every single transaction.
For me what makes the difference in this case is that it is a public monument of national significance. Whatever you may think of war, if soldiers are to be honored at all, they must be honored in a way that is transcendent -- that establishes commonality or solidarity. There really isn't any other way to do it. They can't receive royalties.
The artist is uniquely positioned to convey this to the public -- after all, he is the artist. I don't see how he possibly can do this while suing for royalties. He damages the monument and undermines the honor of being its creator.
On the other hand, if the original contract was simply clear in giving him contingencies on future income as part of his compensation, then -- as long it was not exorbitant, and that could easily cover figures like 50,000 or 100,000, couldn't it -- no-one would have objected or even noticed.
What is really shaking people is the public display of cupidity, not the payment or the rights. In that sense this article is really not about property rights at all, but other kinds of obligations.
This brings me to the question that is bothering others-- since when do building designers or their customers even *have* intellectual property rights in photographs of their buildings? It seems that these rights are either ignored 99% of the time or nonexistent. Am I missing some obvious cases where such rights either are supported in law or should be?
[ link to this | view in chronology ]
Re: So many problems with this
Specifically, 17 USC 101 defines such a work as follows:
A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.
Whenever a work falls within the definition above, 17 USC 105 provides that:
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
The original creator/author of the work not being either an officer or employee of the US Government, the work does not fall under the definition of a "work of the United States Government". Accordingly, the work is not excluded from preservation under US copyright law.
Why isn't this a "work for hire"? Such works are also defined in 17 USC 101, and under these facts the doctrine does not apply. First, the creator/author is not an employee, and, second, the work does not fall under one or more of the various classes of work to which the doctrine does apply.
The fact it is not a "work for hire" is not a troublesome matter because parties to a contract can always insert terms into the contract providing the rights and responsibilities of the parties with respect to a work to which copyright pertains. The problem under the facts in this case is that the contract between the USG and the original contractor (the creator/author was given a subcontract by the contractor to design and sculpt the work) was not well thought out and did not contain provisions transferring all right and title in the work to the US Government, or at the very least a broad license (fully paid up, irrevocable, etc., etc.) for US use of the work under copyright law.
BTW, as a general rule the use of federal appropriations to pay for contract work does not provide the government with title to the associated patent/trademark/copyright/etc. rights. This is likewise true with non-federal contracts involving solely private parties.
Of course, many are confused, and oftentimes downright indignant, when they discover that federal contracts typically leave the ownership of patents and copyrights with a party performing the contract. There are a myriad of perfectly valid business and financially prudent reasons why this is so. Hence, long ago it was decided as a matter of US policy that federal contracts would not recite USG ownership of the rights, but would recite licensing terms affording the USG all it needs to go about its business without worry that a rights holder will show up at its doorstep demanding compensation. Sadly, there are lawyers in the USG's employ who understand these issues and can easily make sure they are appropriately addressed in procurement contracts. I say "sadly" precisely because these lawyers are typically shut out of contract negotiations by other lawyers (who know diddly about this law) engaging in a turf battle that keeps the others in the dark about what is going on.
[ link to this | view in chronology ]
One way to solve the problem
2. Sell U.S. postage stamps depicting this "last desperate misguided act" by Frank Gaylord, and out of the profits from said new stamps pay his heirs for the copyright infringing act the U.S. Postal Service committed in printing and selling the old ones.
3. Any money left over from the sales of the "new" misguided Frank Gaylord memorial stamp = Profit!
[ link to this | view in chronology ]
Replace it
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
If he objects then we can return the statue to him. We'll gladly deliver it to his house. From a helicopter. While still several hundred feet above- nobody said we had to land first before hitting the release switch..
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: This has me thoroughly confused
[ link to this | view in chronology ]
Teach him a lesson
[ link to this | view in chronology ]
Re: Teach him a lesson
[ link to this | view in chronology ]
[ link to this | view in chronology ]
contact info
http://www.frankgaylordsculpture.com/
Contact Information
Frank C. Gaylord
2844 Rte. 14
Williamstown, VT 05679
For Business Inquiries Call John Triano (802)485-9636 or e-mail at trianoj@gmail.com
[ link to this | view in chronology ]
so royalties (his share) minus rent (our share)...
he owe's about 3 mil!
[ link to this | view in chronology ]
Time for a new monument
[ link to this | view in chronology ]
Really??
[ link to this | view in chronology ]
Really??
[ link to this | view in chronology ]
Really??
[ link to this | view in chronology ]