A pyrrhic victory

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.