Saturday, February 27, 2010

Korean War Memorial Sculptor Wins Stamp Photo Appeal

The Am Law Daily reports that the U.S. Court of Appeals has ruled, 2-1, in favor of 85-year-old sculptor Frank Gaylord regarding a photo of his Korean War Veterans Memorial in Washington, D.C. that was used on a U.S. postage stamp.

According to the article, "John Alli, a retired U.S. Marine and an amateur photographer...took hundreds of photographs of the memorial on a snowy day and eventually produced a single, haunting photo. In 2002, the federal government paid Alli $1,500 to use his photo as the basis for a 37-cent postage stamp."

Reporter Zach Lowe writes, "The U.S. Postal Service raised more than $17 million from sales of the stamp--including about $5.4 million in sales to collectors--before the agency retired it." Gaylord, the suit argued, deserved a piece of that money in damages and sued the government in the Court of Federal Claims in 2006."

The government won the case saying the photo and stamp of the memorial was "fair use". It also found that the memorial constituted architecture, and thus was not subject to the usual copyright protections.

Having lost the case, Gaylord, who served as an Army paratrooper in World War II, received no damages.

In 2008, Gaylord and his lawyers appealed the case and this week they won on the grounds that "a new work must make some sort of criticism or commentary to fall under fair use," which clearly the stamp and the photo on which it was based did not.

The appeals court remanded the case for a hearing on damages. The government could petition the U.S. Supreme Court for review.

Shown above, the preliminary design for the 2003 Korean Memorial stamp.

To read the entire article, click here.
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posted by Don Schilling at 12:01 AM