(CN) – A commemorative stamp depicting a photo of the Korean War Veterans Memorial is not fair use of the sculptor’s copyrights, the Federal Circuit ruled.
The U.S. Postal Service issued a 37-cent stamp in 2002 commemorating the 50th anniversary of the end of the Korean War. The stamp featured a photo of “The Column,” 19 sculpted soldiers at the National Mall in Washington, D.C.
The sculptor, Frank Gaylord, sued the Postal Service for copyright infringement, claiming he never gave the government permission to use a depiction of his work. He demanded 10 percent of the sales of the stamp, which totaled more than $20 million.
The U.S. Court of Federal Claims ruled that the stamp is a fair use of The Column, because it offered a new interpretation of the original work. The stamp transformed the sculpture “by creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings,” the claims court wrote.
On appeal, the Federal Circuit did not find the stamp transformative, because it “did not use The Column as part of a commentary or criticism.”
“Capturing The Column on a cold morning after a snowstorm … does not transform its character, meaning or message,” Judge Kimberly Moore wrote for the 2-1 majority. “Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.”
The appeals court reversed on the fair-use issue, but upheld the claims court’s findings that Gaylord is the sole owner of the work, and that his sculptures are not exempt from copyright protection under the Architectural Works Copyright Protection Act.
In a dissenting opinion, Judge Pauline Newman argued that the United States is the true copyright owner, because the memorial was “authorized by Congress, installed on the National Mall and paid for by appropriated funds.”
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