War, Sculptor, Post Office, Copyright, Staututes Not Stautues Make Strange Bedfellows

[For background article, thanks to @artinfodotcom “Postal Disservice: Could a Sculptor’s Fight for Royalties From a Postage Stamp Change Copyright Law?]

The United States Post Office paid sculptor Frank Gaylord $775,000 to create his stunning Korean War Veterans Memorial in Washington’s West Potomac Park. Another artist, photographer John Alli, took a photo of the Memorial covered in snow and licensed the photograph to the United States Postal Service for use on a postage stamp. He received $1,500.

The stamp made $30,000,000!

Windfall for the financially challenged Post Office. No, sorry.

Frank Gaylord sued the USPS for copyright infringement. A lower court limited Gaylord’s damage to the typical fee USPS pays, around $5,000. On appeal, the court reversed this limitation and held that Gaylord may be entitled to a 10 percent royalty ($3 Million?) based on his typical fee arrangements for licensed images of his work.

The trial court had also been reversed on its original holding that the Alli photograph was actually protected by principles of fair use. (See Harrison Firm excellent review of prior proceedings.)

Strange case, this one. Artist paid almost $1 million dollars for sculpture seeks more. Artist who creates the actual images upon which stamp is based receives next to nothing. Prominent artists from all genres chime in to support the transforming art and artist fair use exception to copyright in this and the Cariou litigation.

[Great photographs and a great brief filed by the Warhol Foundation in Cariou:]

“The capacity of people to participate in culture and express themselves resides squarely in their ability to reference, change, modify, dissect, and criticize existing expression.” (On this brief, Stanford Law School Center for Internet and Society.)

Especially troubling to me here is that the underlying artistic work was commissioned for public consumption.

Are the courts confused in overturning the fair use claim because they see an imagined commercial windfall by the USPS? Is the stamp really Gaylord’s work? If it were a photograph of the Frank Gehry NYC apartment building blown up by terrorists, how would that case come out?