PetaPixel

Sculptor Awarded $685,000 After Photo of Korean War Memorial Used on Stamp

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Be careful when photographing sculptures for commercial purposes — you could quickly find yourself on the losing end of a copyright infringement case and being forced to pay a lot of money.

This happened back in 2011, when photographer Mike Hipple was forced to pay up after shooting stock photos of a public art installation in Seattle. Now it has happened again: a court has ordered the United States Postal Service to pay a whopping $684,844 to sculptor Frank Gaylord for using a photograph of the Korean War Veterans Memorial on a stamp.

The stamp, shown above, shows some of the 19 soldier sculptures 88-year-old Gaylord created for the well-known memorial in Washington, D.C. — sculptures that were sculpted over five years for a fee of $775,000. The 37-cent piece was released to commemorate the 50th anniversary of the Korean War. Problem is, the Postal Service never asked Gaylord whether they could use images of the sculptures.

The sculptures featured in the stamp photo, as they appear in the National Mall in Washington D.C.

The sculptures featured in the stamp photo, as they appear in the National Mall in Washington D.C.

When Gaylord learned of the use, he sued the agency for copyright infringement. The courts decided late last week that Gaylord is entitled to $684,844 for damages — nearly $680,000 more than the largest stamp settlement ever paid in the past by the Postal Service ($5,000).

The case actually stretches back a ways: an original decision by the courts in 2008 ruled in the agency’s favor, stating that its use of the photograph was fair use. In 2010, the sculptor’s attorney was able to have that decision reversed, and this month courts decided to rule in Gaylords favor — big time.

USA Today reports that the sculptor also launched a lawsuit against Marine John Alli, the photographer behind the photo that was used. The two parties in that case came to a settlement rather quickly, with Alli agreeing to give Gaylord 10% of all future royalties generated by that photo.

This 10% royalty rate explains the $685K settlement — the courts decided on the amount after crunching numbers on how much the Postal Service had generated from its sales.

The Postal Service says it is currently deciding whether to appeal this damages decision.

(via USA Today via Reddit)


Image credit: Washington DC – Korean war veterans memorial by Janitors


 
  • Dick Head

    Gaylord – hue,hue,hue … I should probably grow up.

  • PeterTx52

    interesting. wonder why it was not considered a work for hire

  • Ed Rhodes

    who owns the property that it stands on? Who paid for the sculpture? If the US Taxpayers paid for it, then it should belong to the taxpayers and not the sculptor.

  • Karen McHale

    See, this is what I do not understand……a commissioned piece like the WWII Memorial is set in PUBLIC SPACE. So, how does a PHOTOGRAPH, which is the photographer’s work, of a PUBLIC SPACE SCULPTURE become infringement? I understand if it was inside a museum but this is an outdoor space that is owned by the GOVERNMENT and was commissioned by the GOVERNMENT. The sculptor was paid for his piece. So, in essence, this piece is owned by the AMERICAN PEOPLE. He should not have been awarded anything. The photographer, on the other hand, his picture is his interpretation of this sculpture, thus he had a right to sell HIS PHOTOGRAPH of this PUBLIC SCULPTURE.

  • Mike

    Never grow up.
    Just don’t.

  • Mark O’Brien

    The sculptor got his payment when the sculpture went to the federal land that is owned by the people. The Postal Service is an arm of the government. The photographer’s interpretation of the sculpture echoes precisely the conditions of the Korean war, which the sculpture, in and of itself, does not. That is a creative derivative work of a publicly-owned piece of art. How in hell the sculptor should get paid twice for this is crazy.

  • Mescalamba

    In this case I think I would mock him too.. Especially considering whole case.

  • Mescalamba

    Bad lawyer with less common sense than you I would say.

    Frankly that was exactly what I thought.. No clue why they didnt use it. *shrug*

  • gochugogi

    Although he was paid to create the piece, Gaylord likely enjoyed a contract specifying ownership of the intellectual property and entailment to revenue generated from it. Not so different from a photog hired to shoot a wedding and retains copyright ownership and uses it to generate income from reprints.

  • Ian

    Good to see this post – we photographers are usually concerned about people ripping us off, but we can unwittingly do the same thing if we’re not careful. I always start my shoots of any property (public or otherwise) by requesting permission to shoot and use the images and have a clause in my contracts that transfers the risk to my clients. Sculptures in public places and “public” universities “owned” by Trustees are also a big issue for a lot of my commercial work. It’s always best to assume you need to obtain the rights, it goes both ways…

  • Mark O’Brien

    A lawyer screwed that contract up for the government…

  • Leonardo Abreu

    This is ‘Murica!

  • John Mireles

    Few points:

    - Just because the client is the US government does not mean that the artist gives up their rights under US Copyright law. The government has to pay just like every other client out there.

    - The photographer profited from the licensing of his image. The Postal Service profits from selling more stamps. Why should the artist who created the work not be allowed to benefit from the reproduction of his work? That is the point of Copyright after all.

    - The government may have requested a Work For Hire agreement whereby the government owned the rights to the finished artwork. If the sculptor is a savvy businessman, he would have said,”Sure, my regular rate is $750,000, but if you want all rights, it will cost you $7,500,00. What do you want to do? My guess is that the government would have accepted the lower rate. Sure they could have gone to another artist who willingly gave up his copyright for the exposure – but then they wouldn’t have received the same level of quality and dependability they received from this artist. (Does this sound like wedding or commercial photography anyone?)

    I really don’t understand why people think that just because someone does work for the government they lose all of their rights.

  • Burnin Biomass

    I believe it works like a photograph in most cases. If I sell an 8×10 to someone, they dont have a right to the image, they just own the 8×10.

    I believe (and I could be wrong) that in art, you own the physical piece, but you dont buy the rights to use it in another capacity (unless of course you make that arrangement with the artist). Just like in photography. If the government didn’t pay or get that release, its their fault.

    Your point of being his interpretation of the sculpture does have merit under the transformative part of fair use. But that is a blurry line, and is up to judgement.

  • John Mireles

    In order for this to be considered Work for Hire, the artist would have had to sign a specific agreement to that effect. No signed agreement, no WFH.

  • Karen McHale

    I’m sorry, but, in this case, the sculptor should NOT have been able to sue. This is for public use on public land. I understand in private exchanges, it’s a different story but, in this case, this was a COMMISSIONED piece. If the government made that kind of deal for him to retain his copyright, then it was a bad deal. When things go on public land and is commissioned by the public, you lose your copyright.

  • Burnin Biomass

    It doesn’t matter if its on public land (I believe). Its all about the deal the government made with the artist. If the artist won, then I’m betting the government screwed up and didn’t buy the rights as well.

  • Karen McHale

    I agree if you are going in on a commercial shoot. But, many of us don’t shoot like that and sell our photos stock.

  • Rabi Abonour

    Your line of argument could just as easily be used to say that if I commission you to photograph something, I have universal rights to those photographs. No sane photographer would work under those terms. The sculptor was paid to make the monument, not to have the monument used on a stamp.

  • Steven Barall

    Of course you have to clear rights for something like that. It’s not an editorial usage, it’s purely commercial. What a bunch of dopes. You wonder why the Post Office is broke.

  • snapshot1

    Same reason why the production companies I work for in NYC when shooting on the streets have to clear the rights to obvious identifiable graffiti if it ends up in the print ad, commercial or film they are doing. I’m not talking murals either, but straight up graffiti – seriously. So someone technically breaking the law can sue the production company if they claim to have been the artist who made the “public art”.

  • snapshot1

    So many people are confused in how buying art works. Most artists of this caliber put clauses in their contract of what can and cannot be done with the work of art. I can sell you a work of art for millions and still be able to execute in court a lawsuit against you if my contract with that sale stated that you can never destroy the work of art, or display it anywhere outside your private property. These sort of contacts with high-end art are very common. There are even things like the 1977 California resale law (that was declared unconstitutional by a judge recently but I think is still being fought) that even grant things unconditionally like if I bought your work for $500 and then sold it at auction for $5,000,000 you as the artist have a right to a resale percentage (I think it was 5% or 10%) on every resale of that piece I think even including your estate – and that is something an artist didn’t have to even put in their bill of sale, it is/was a law when selling art in California. There is so much that goes into art buying and selling – it’s not like walking into a store and buying a product and I think that’s what most people assume art is – a product. It’s not, it’s more like buying a real estate with clauses and conditions involved even usually involving more than one party.

  • Ed Rhodes

    If the photographer is a taxpayer, then he owns that sculpture, and should be able to do whatever he wants with photos of his property.

  • Burnin Biomass

    Even if the taxpayer argument worked, you still cannot do what ever you want with a sculpture unless you buy the rights to it also. Our representatives in that sale didnt get the rights, so us as taxpayers do not own the copyrights to it.

    He can take all the images he wants, selling them is the problem.

    As a taxpayer, I own a lot of tanks too, I wanna take one for a drive!

  • snapshot1

    May I add a point to your points?

    - Just because something is bought with taxpayer’s money doesn’t mean “we” or WE get to do whatever “we” want with it. I can’t go rip-out a tree in a state park and take it home nor can I go changing the signs on a street because I don’t want it to be there. I can’t go onto pubic federal land at 1am if the stated times you’re allowed access is 9am-5pm. “WE” don’t own things bought with taxpayer money and get to do anything we want with it or I’d be asking for my ride in an F-16 today.

  • Terry

    But if you sell your photos, aren’t you doing for commercial gain? That would seem the logical point of selling your stock.

  • http://www.bobcooleyphoto.com/ bob cooley

    No, that’s not how it works. Just because work is displayed in public – even if the work is commissioned – the author retains the copyright. That’s the law, plain and simple. Artists don’t lose their copyright on commissioned works, unless they sell the work with a rights buy-out attached, which is very very rare.

    And just like other copyrighted works, there is no issue with private individuals taking photos of the work for their own personal enjoyment – but using those images, either by the photographer or a client of the photographer for commercial purposes is a breach of that copyright.

    A city government is both a public and private entity (cities and municipalities are also incorporated entities) – when a government purchases and displays a piece of artwork in the public, its a private exchange that the government displays for the enjoyment or experience of that artwork to the citizenry, but they are not displaying artwork for to be used for commercial profit by others.

  • http://www.bobcooleyphoto.com/ bob cooley

    @burninbiomass:disqus is correct – a photo of a sculpture is not a tranformative work. The fact that it was bought by the District of Columbia does not trump the law, nor does it make it owned by the American public.

    The sculpture is owned by the District of Columbia (not the United States) – and D.C. owns the physical sculpture under First Sales doctrine (the same law as when you buy any original artwork, like a sculpture or painting) – that doctrine gives you the right to own and display the work, but does not give you the copyright to the work, which stays with the author of the work (unless the author chooses to sell and relinquish all rights, which almost never happens).

    It’s not a public sculpture – its a work of art, created by a private individual for public display. The public has the right to view and enjoy it (even photograph it for their own enjoyment) – but they don’t have the right to profit from the author’s work.

    You might not like it, but its how copyright works.

  • http://www.bobcooleyphoto.com/ bob cooley

    if you are selling your photos via stock, you are engaged in a commercial shoot on speculation of sale. If you are a photographer, you’ll need to have a better understanding of copyright – its the very thing that protects us as content creators.

  • kassim

    America, where you can sue anyone for anything(but the motivation remain the $ame) .

  • harumph

    It’s not about who owns the sculpture; it’s about crediting the artist who created it.

  • brian

    Does the same apply with an architect and a building?

    If so, many many photographs are in jeopardy.

    If not, who decides that the Guggenheim is a building and not a sculpture?

  • Guest

    You can trademark a building and have similar commercial reproduction protection. Its not automatic however.

  • harumph

    A building is no more analogous to an artwork than a car is. Not everything that’s designed and built is considered a work of art, nor are they protected by the same authorial rights as a sculpture or a painting…or a photograph.

  • John Kantor

    Just a scumbag sculptor and a scumbag lawyer. And a court system that’s totally ***** up.

  • Rob Elliott

    I tried to post this early but included a link.

    Buildings and Art Instillations can be trademarked and copyrighted, there are many examples of this, such as the interior of the New York Stock Exchange, the Chrysler Building, 30 Rock, the Hollywood Sign, the Beverly Hills sign, the Lighting of the Eiffel Tower, etc.

    Art can also be trademarked, Like Disney Characters for example, you can’t go to a Parade where Mickey Mouse is take a picture of it and use it as a stock image without a release.

    Any time a trademarked or copyrighted image is used for commercial reasons you need a release just like with a model.

    In the case of Art it is the same thing, if it is copyrighted you can take a photo for yourself but you need a release either from the city or from the artist (or both depending on contracts) if you use it for a commercial purpose. Like for example a stamp.

    A great example. You are hired to photograph a product for a local Sushi restaurant for use in local advertising. You provide them licence for the image, and charge them based on the image being used.

    Then another photographer seeing an advert on a side of a bus snaps a picture where your image is the primary focus and subject of the photograph. Then that picture ends up in a magazine add for a Gum or something.

    The other photographer is profiting from your art…. and that is what is happening here, and that is why he is suing and will be successful

  • Mark O’Brien

    Crazy-ass lawyers! That’s all i have to say about that.

  • Guest

    I think you’re stretching the connection beyond Karen’s point. This isn’t a photograph that can be copied on a computer and inserted into an ad campaign. It’s a granite and marble location piece. No one is taking it home with them. The artist got paid up front to create his sculpture.
    Legal hair splitting aside, that work is now in the public domain.

    And when does an object cross-over from artistic installation with private copyright to simple a simple publicly owned (paid for with tax dollars I assume) structure? Is the Vietnam Wall (or any countless number of public art works) protected by private copyright if it’s placed on a postage stamp?

  • Burnin Biomass

    If a sculpture cannot be in an ad campaign, how did it get on a stamp?

    Its not legal hair splitting, its the law. Every painter, sculptor and photographer retains control of their artwork even if they sell it or copies of it.

    If the artist who designed the Vietnam Wall chose to retain those rights, then yes its protected by copyright if placed on a stamp.

  • PeteM

    For those that still don’t get it, look at it from this perspective. Once the piece of art was sold, the artist retains the right to recreate that piece of art and sell it to someone else, or even make derivative art from it.

    i.e. If you create a character and produce art (or other products) based on that character, say a mouse that wears pants and gloves and can talk and you create plush toys in the image of that character, you can sell millions of these plush mouse toys and keep producing more if you like, and none of the buyers have the right to create works involving, depicting or derivative of that art for commercial gain. The original artist retains that right after selling the art, or product.

    In this case the Artist most certainly retained that right, not selling it to the buyer.

    –Pete

  • http://www.bobcooleyphoto.com/ bob cooley

    Being in a public space is not the same as being public domain (which is a legal distinction).

  • http://www.bobcooleyphoto.com/ bob cooley

    @bfa8e53a07ec343b6977705e073716fb:disqus @harumph:disqus Yes, and no. In some cases, buildings are able to be registered as works of art, but its not automatic, prior to Dec. of 1990.

    Some architects have successfully been able to trademark their buildings (not an error, I did type trademark) – which effectively blocks commercial use in the same way that a copyright does (feel free to go to the USPTO site and do a TESS search for the Chrysler building) – Frank Llloyd Wright, Frank Ghery to name a couple).

    in most cases buildings built prior to Dec. 1990 are considered public domain, but anything built after 1990, or designed after 2002 are automatically copyrighted like any artistic work.

    Photographing buildings from public space is always allowed (don’t ever let a security guard tell you otherwise) – but publishing those photos commercially is another matter. If the building is incidental to the image, its typically not a problem, but if it is used as a focus of the image, its an issue – So, image of the Chrysler building itself would not be usable commercially, but an image of the NYC skyline would…

    Brian, I’m pretty sure the Guggenheim is held under trademark or copyright status – you can certainly take pix of the building, you just can’t use them commercially.

  • http://www.bobcooleyphoto.com/ bob cooley

    Even under this scenario (which isn’t the case), the taxpayers would only have the rights they would have if they bought the sculpture directly, which is called “First Sale Doctrine” – this means they own the physical object, but not the right to reproduce it for commercial purposes (such as selling photos of it, or using the item in commercial advertising, etc.)

    Your question is also kind of like asking who owns the building where the paintings are hanging – just because the art is displayed there, the gallery owner does not have the right to commercially reproduce the image other than to promote the artwork being in the gallery. it’s pretty simple.

  • Davee

    I actually agree with the sculptor here. The stamp image is abstract – the composition, use of snow, stylised use of over exposure; this to me is passing off as original artwork based on a real scene. If a photo such as the one on the article (in sun) had been used, I don’t think he’d be so justified.
    What would you do if someone photographed one of your pictures hanging publicly, and passed it off without credit to their own financial gain (as the US postal service have done here)?

  • http://www.bobcooleyphoto.com/ bob cooley

    Typically work for hire status is reserved (with some exceptions) to actual employees of the company (or in this case government), AND it is their job to create the type of work in question.

    So, if the artist was a government employee who’s title and job description was “Government Sculptor” (or something like that) it would be a work for hire, but a government employee “Administrative Assistant”, “County Dog Catcher” or even Senator would not be held under work for hire for creating something that is not in the general scope of their employment. And even in cases where it is part of the person’s job description, it’s usually part of their contract – only in certain cases is work for hire compulsory.

  • Kenan Farrell

    There’s an exception for photographs of buildings. Copyright Act 120(a)

  • dudung10

    he should use that money to change his name.

  • jkantor267

    Dipshit

  • Davee

    jkantor267 – would you like to back up your elequent posting with some sort of argument? I would like to think this forum provides a vehicle for debate and discussion above the level you seem to have descended to – can you prove me wrong?