Caseflicks

Court of Appeals for the Federal Circuit • 2010

Gaylord v. United States

595 F.3d 1364 | 2010 U.S. App. LEXIS 3915

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Takeaway

In short, this case holds that a commercial stamp reproducing a creative public sculpture is not fair use merely because a photograph’s snow and lighting alter its appearance; the sculptor remained the sole copyright owner, and the sculpture was not an architectural work exempt from protection.

Background

Frank Gaylord created The Column, the group of nineteen stainless-steel soldiers that forms the central sculptural element of the Korean War Veterans Memorial in Washington, D.C. Although architects, advisory boards, and federal commissions gave Gaylord historical guidance, critiques, and design suggestions, Gaylord translated those inputs into the finished sculptures. His copyright registrations listed him as the sole author.

Photographer John Alli took a snowy photograph of the Memorial, titled “Real Life.” In 2002, the Postal Service licensed Alli’s photograph for a 37-cent Korean War Veterans Memorial stamp. The stamp showed fourteen of the nineteen soldiers. The Postal Service produced about 86.8 million stamps, received more than $17 million from sales of nearly 48 million of them, and also sold stamp-related retail products. It did not obtain Gaylord’s permission.

Gaylord sued the United States in the Court of Federal Claims for copyright infringement. That court held that Gaylord alone owned the copyright in The Column and that the Architectural Works Copyright Protection Act did not exempt the Postal Service’s use. It nevertheless found fair use because the snowy, muted image on the stamp was transformative. Gaylord appealed the fair-use ruling; the government cross-appealed the ownership and architectural-work rulings.

Issues

Issue #1

Whether the Postal Service’s use of The Column on its commemorative stamp was fair use under 17 U.S.C. § 107.

Holding

No. The stamp was not a fair use of Gaylord’s copyrighted sculptures.

Reasoning

The first factor, purpose and character of the use, weighed strongly against fair use. The relevant inquiry concerned the Postal Service’s stamp, not the independent artistic choices involved in Alli’s underlying photograph. Both the stamp and The Column served the same essential purpose: honoring Korean War veterans. The stamp did not use the sculptures for criticism, commentary, scholarship, biography, or another distinct purpose that would alter their meaning or message.

Snow, subdued lighting, and muted coloring changed the sculptures’ appearance but did not transform their character. The surreal or ghostly quality claimed for the stamp was already an important feature of The Column itself and of the Memorial’s original conception. As the court put it, nature’s decision to snow could not strip Gaylord of his otherwise valid right to exclude others from exploiting his work.

The stamp was also commercial. The Postal Service earned more than $17 million from stamp sales, including substantial sales to collectors, and sold related merchandise. Because the use was neither transformative nor noncommercial, the first factor strongly favored Gaylord.

The second factor also favored Gaylord. The Column was an expressive and creative sculptural work, close to the core of copyright protection. Its public display at a national monument made it published, but that fact did not overcome its fundamentally creative nature. The trial court had improperly discounted this factor based on its erroneous conclusion that the stamp was transformative.

The third factor favored Gaylord because the stamp showed fourteen of the nineteen sculptures and made The Column essentially its entire subject. The altered atmosphere did not reduce the importance of the copied material: the stamp was expressly titled “Korean War Veterans Memorial,” and the soldiers remained its visual focus.

The fourth factor favored the government. The Court of Federal Claims did not clearly err in finding that the stamp neither diminished the value of The Column nor displaced a meaningful market for Gaylord’s derivative works. A person wishing to photograph or otherwise create a derivative work from the sculptures would not regard the stamp as a substitute for access to the actual work.

On balance, the absence of market harm did not outweigh the government’s commercial copying of a creative work for the same commemorative purpose as the original. Treating that use as fair would not further copyright’s purpose of promoting creativity. The court therefore reversed the fair-use judgment.

Issue #2

Whether Cooper-Lecky Architects, the Veterans Advisory Board, or the Commission of Fine Arts were joint authors of The Column, giving the government a right to use it.

Holding

No. Gaylord was the sole author and copyright owner of The Column.

Reasoning

Gaylord’s timely copyright registrations supplied prima facie evidence that he was the sole author. Statements on some registration forms that the work was “fully approved” by federal commissions described approval of the work, not authorship. Approval, criticism, and review do not themselves establish copyrightable authorship.

The government did not rebut the registration-based presumption. The trial court considered the government’s evidence but found that the entities’ contributions consisted of suggestions and criticism, rather than independently copyrightable expression. The Federal Circuit held that this was a proper application of a rebuttable presumption, not an improper refusal to consider contrary evidence.

Joint authorship requires that each putative author contribute original, copyrightable expression and intend that their contributions be merged into a unitary work. A person who supplies an idea or tells an artist generally what a commissioned work should look like is not thereby a joint author; authorship requires translating ideas into fixed expression.

The various groups offered historical and visual directions, such as the ethnicities and equipment of soldiers, the youthfulness of their faces, the amount of wind in their ponchos, the position of a soldier, and the suggestion that the figures be staggered. Gaylord, however, made the artistic decisions that converted those instructions into the specific expressive forms of the nineteen sculptures. Those inputs were no more than unprotectable ideas, directions, suggestions, and criticism.

Cooper-Lecky’s other physical contributions to the Memorial, including landscaping, reflecting pools, and granite bands suggesting rice paddies, could not establish co-authorship of The Column. Those features were separate from the sculptures and were not included in the copyright at issue.

The parties’ agreements also supported the finding that they did not intend The Column to be jointly authored. A 1994 agreement stated that Gaylord would hold the copyright, and a 1995 agreement recognized him as the sole author of the soldier sculptures while treating the overall Memorial as a collective work. The Federal Circuit therefore affirmed the finding of Gaylord’s sole ownership.

Issue #3

Whether The Column was an architectural work whose pictorial reproduction was exempt from infringement liability under the Architectural Works Copyright Protection Act.

Holding

No. The Column was not an architectural work under the Act.

Reasoning

Section 120(a) permits pictorial representations of a constructed architectural work visible from a public place. But an architectural work is the design of a building, and the governing regulation defines a building as a permanent, stationary structure intended for human habitation or occupancy.

The Column was artistic sculpture intended to convey a message, not a structure intended for human occupancy. Visitors could walk through or around the Memorial, but that did not make the sculptures a building any more than a walkway or bridge becomes one. The Federal Circuit therefore affirmed that the Architectural Works Copyright Protection Act did not shield the Postal Service’s use.

Dissents

Judge Newman

Reasoning

Judge Newman would have held that the United States had an unencumbered right to use an image of the Memorial for governmental purposes. In her view, the Memorial was a publicly funded national monument created under the Army’s contract with Cooper-Lecky, and that contract gave the government unlimited rights in designs and other works produced during performance. The contract also characterized the government as the person for whom copyrightable work was prepared and barred the contractor from asserting copyright claims.

She maintained that the contractual rights extended to Gaylord as a subcontractor. The government paid Gaylord for his work, federal agencies supervised the memorial’s design, and the work was performed for the United States. A later agreement between Gaylord and Cooper-Lecky recognizing Gaylord’s copyright could allocate rights between those private parties, but could not surrender the government’s preexisting contractual rights because the government was not a party to it.

Judge Newman further argued that 28 U.S.C. § 1498(b), the statute authorizing suits against the government for copyright infringement, denied Gaylord a cause of action. That statute excludes works prepared by someone in the employment or service of the United States or with government time, materials, or facilities. Relying on the court’s prior recognition that service need not mean formal employment, she concluded that Gaylord’s work as a paid subcontractor on a federally directed project was plainly done in the government’s service.

The majority declined to resolve the contract and § 1498 arguments because the parties had not briefed them on appeal and the record did not establish that Gaylord created The Column in government service or with government resources. Judge Newman believed the court could and should address those dispositive issues because the record contained the governing contract and the copyright provisions were central to the public ownership of the Memorial.

She also would have affirmed the trial court’s fair-use ruling. In her view, the snowy photograph and its Postal Service editing created a stark, surreal, and materially different image from the sculpture itself. She regarded the trial court’s findings on the statutory fair-use factors as supported by the record and stressed the public-policy concern that copyright claims should not chill ordinary public use of a publicly funded national monument.