Author: Jonathan B. Huntington; Eaton Peabody (Maine, USA)
If a photograph you took in a public place depicts the work of another that is protected by copyright, you may not have the right to distribute, copy, display, or sell it. This important lesson is at the center of a 2010 case from a United States Court of Appeals about the postage stamp shown.
The sculptor Frank Gaylord was chosen by a federal commission to create a public memorial honoring veterans of the Korean War to be erected in Washington, DC. Gaylord made 19 larger-than-life soldiers, cast in stainless steel, wearing helmets and ponchos, and carrying their weapons as if on the move through the battlegrounds of Korea. The installation, called "The Column," was completed in 1995. Gaylord registered his copyright in the U.S. Copyright Office using photographs of the group of soldier statues as installed on the National Mall.
In January 1996, just after a snowstorm, John Alli took a photograph of The Column. The ground was snow-covered and the statues were frosted with fresh snow. In return for a 10% royalty, Alli obtained permission to sell prints of his photograph from the architects who had been the primary contractors for the construction of the memorial. He did not know about Gaylord's copyright and did not contact him.
Several years later, the U.S. Postal Service decided to commemorate the 50th anniversary of the Korean War armistice in 1953 with a 37-cent stamp issue. The Postal Service chose Alli's photograph as the illustration and paid him $1,500 for the use of his photograph. The stamp above was issued depicting 14 of Gaylord’s 19 soldier statues. Over the course of about two years, the Postal Service received about $17 million from the sale of nearly 48 million of these stamps. The Postal Service did not seek or obtain Gaylord’s permission to use his statues depicted in the Alli photograph.
Gaylord sued the government for infringement of copyright and won. The Court of Apeals sent the suit back to the lower court for a determination of the damages to be awarded to Gaylord. The court rejected the government’s argument of “fair use,” stating that the stamp’s depiction of The Column, snow-covered and nearly monochromatic, did not change or add to the meaning or character of the work as created by Gaylord.
The prudent photographer, and particularly one who wants to exploit a photograph commercially, will always check to be sure that the rights of others whose images or works appear in the photograph are not infringed and that appropriate permissions have been obtained.
About the author
Jonathan B. Huntington is the chair of Eaton Peabody’s intellectual property practice group. He represents business people and members of the creative community in the U.S. and internationally, working in the areas of copyright and trademark law, including copyright licensing and grant terminations, U.S. and foreign trademark registrations and licensing, and prosecution and defense of trademark and copyright infringement claims. To contact Mr. Huntington about questions in the areas of copyright and trademark law, and to learn more about Eaton Peabody’s intellectual property practice, please visit eatonpeabody.com.
