There was a disturbing decision in a copyright case from the US Court of Appeals for the Federal Circuit last week.  The Court of Appeals held that a U.S. postage stamp issued to commemorate the 50^th anniversary of the armistice that ended the Korean War infringed a copyright held by the sculptor who created the famous statutes of soldiers matching in a column that is part of the Korean War Veterans Memorial in Washington D.C.  The stamp is based on a photograph taken by a photographer who originally intended it as a gift for his Korean War veteran father, but later sold copies to, among others, the U.S. Postal Service.

Commentators on the decision have focus on the Circuit Court’s rejection of the lower court’s ruling that the stamp makes fair use of the statues; see comments here and here (with a link to the full decision).  These commentators are rightly troubled by the finding on appeal that the stamp is not a transformative use of the statues.  But I want to consider a couple of slightly different issues.

First, the right of Frank Gaylord, the sculptor, to assert a copyright claim against the United States is not entirely clear.  One judge on the three judge panel dissented strongly from the majority conclusion largely on the basis that the United States, which commissioned the work, held rights in it by both statute and contract.

The majority holds, in its fair use analysis, that the use of the photo on a postage stamp was a commercial use, even though the “commercial” entity involved is a self-supporting agency of the US government.  The decision that the sculptor is entitled to damages from the US Postal Service, in addition to the $775,000 he was paid for the original work, has direct implications for all of us as taxpayers.  The reason for statutory and contractual claims by the government to rights in works it commissions is precisely to protect taxpayers from these kinds of claims.  To call this stamp a commercial use ignores the relationship between “we the people” and the postal service, and it dishonors the real intent of the stamp to further honor Korean War veterans.

The second issue I want to raise is the impact of this decision on amateur photography and on public art.  It is interesting that the court does not hold that the postage stamp has damaged the market for the original; they even note that the sculptor admits that the stamp has enhanced the value of the original work.  Yet without evidence of market harm, they reject fair use based on the other three factors.  By shaping the decision this way, the court seems to suggest that amateur photography of publicly visible works of art could be infringing.  The original purpose of the photograph, after all, was purely personal.  And, of course, personal uses do not get a mention in the fair use provision as one of those uses that are presumptively fair.

So is it possible that an artist whose work is displayed in public could have an infringement claim against a tourist who takes a picture?  It seems unlikely, but this decision strengthens the possibility.  The court explicitly considers the exception added to copyright law for photographs taken of architectural works and finds that sculpture does not fall within its ambit.  If such an exception is needed for photographs of buildings and does not apply to sculpture or other art works, the status of photographs of the latter is clearly in doubt.

Apparently what we need is Congressional action to tell the Federal Circuit that this decision was wrong by enacting a separate exception for photographs of public art.

And then, finally, there is the chilling effect that this decision must have on commissions for public art.  A single artist has here won a windfall against the government, but it is surely a Pyrrhic victory as regards artists in general.  If works of public art cannot be photographed and displayed in order to encourage people to visit, admire and reflect, the reason for commissioning such works in the first place is diminished.  The majority writes in its decision that allowing the government to “exploit” the statues “will not advance the purpose of copyright in this case,” but they do not explain why that is so.  Indeed, if the purpose of copyright is to create incentives for artists to create, the opposite is true.  Mr. Gaylord was well paid for his work and there is no evidence that licensing for a postage stamp was ever imagined as part of his incentive (although coffee mugs and commemorative plates apparently were).  But the potential effect of the ruling on future commissions could depress the incentive for creation, a result entirely contrary to the point of copyright law.

By the way, there is another story of a lawsuit over photographs of a public art work here, describing a suit over the famous statue of Jesus that stands over Rio and was “destroyed” by filmmakers from Columbia Pictures in the movie 2012.  More reason for a statutory (pardon the pun) exception to the copyright in public art.

Happy New Year to all.

January 1 is traditionally Public Domain Day, in addition to being a day for parades,  bowl games and hangovers.  That is because most copyright laws stipulate that all copyrights the term of which would expire throughout a particular year actually expire on Dec. 31.  Thus, on January 1, lots of works should enter the public domain.  In Europe, January 1, 2010 sees free public access to the poetry of William Butler Yeats and the works of Sigmund Freud.  But here in the U.S., the gerrymandering of our law over the past decades has resulting in almost no new works in our public domain.

There is a great web page on Public Domain Day 2010 here, from the Center for the Study of the Public Domain at Duke’s Law School.

I am particularly struck by the quote on the CSPD page that reminds us that we are the first generation of Americans to deny ourselves access to our own culture.  Almost nothing created in our lifetime will be available to support new creation and innovation by us.  If we are not vigilant, these works will be denied to our children and grandchildren as well.  Nothing except some unpublished works will enter the US public domain through expiration of the copyright term until 2019, and possibly later than that, if the term is extended retroactively again.

These reflections demonstrate very clearly that copyright protection really is, as Lord Macauley said many years ago, a tax on the public.  We continue to pay higher prices for works by Yeats, Freud and thousands of others because copyright prevents free market forces from operating.  We must seek permission, often from descendants who do not know nor care about the control they hold, to make new works based on old.  All these costs are imposed on us by the government, which grants the copyright monopoly ostensibly for the benefit of authors.  But there is no sign that the descendants of Freud or Yeats are benefiting from this absurdly long protection in the US.  Only intermediaries continue to make money, because they do not have to compete in a free market but can charge the public monopoly prices.

Perhaps when the next proposal to extend copyright’s term comes before Congress, we can be intentional about labeling it what it really is — a tax that benefits private interests at the expense of the public.  If its impact was clearly understood, it would be much harder for Legislators to vote for the copyright tax.