Stamps, Sculpture and Free Expression

We filed an amicus brief today in Gaylord v. U.S., a potentially important but little-noticed fair use case on appeal in the Federal Circuit. We filed it on behalf of the Andy Warhol Foundation, and several other amici, including the Warhol Museum, contemporary artists Barbara Kruger, Thomas Lawson, Jonathan Monk, and Allen Ruppersberg, and a variety of law professors who care about the extent to which copyright promotes and protects free expression. One of the important questions the case presents is whether this stamp makes fair use of the statue that appears in it. The image you see is a photograph of a sculpture taken at dawn in a snowstorm. The sculpture itself is called The Column, and is part of the Korean War Veterans' Memorial in Washington DC. It features nineteen larger-than-life soldiers arranged in two columns, representing a platoon of soldiers on patrol in the Korean War. The Postal Service got permission to use the photograph that appears on the stamp, but not the column depicted in it, so the sculptor sued the Postal Service for infringing his copyrights in the sculpture. One of the important questions this case presents is whether and to what extent an artists has the right to use existing imagery to create new artistic expression. We think fair use does and should protect this right, which is crucial to huge amounts of expression, including vast amounts of modern art. We submitted an amicus brief because we thought the Federal Circuit should hear the views of those who create, promote and defend that art. Read the brief here.


So following the line of logic this lawsuit is based on. Did the artist who created the sculpture get permission from the makers of the rifle, Army Helmet & overcoat he depicted in his sculpture? Seems to me if this case is won it would open the artist up a possible three lawsuits.

Was the sculpture created as a work for hire?
Was it created privately and then later sold/donated to the government? And if so, is there legal paperwork somewhere that shows the sculptor specifically kept the copyright and it did not transfer with the physical sculpture itself?
I would say that if the answer to these questions is "no", then the sculptor doesn't have a case. And even if they do have a case, this sounds/feels like a money grab, and nothing more...

If it's a memorial, I'd assume its publicly viewable. So that makes it free. They take a picture to use, fine. They put it on a stamp, fine. If it's a pay galery then... It could be not fine. If it's a pay galery the guy probably has no intent to get money from the USPS but only get plublicity. The news will talk about it in sympathetic retarded manor and the idiots will flock to the place. Oh poor guy got a picture stolen and placed on a stamp. Me, if it's a pay galery stay away because he is sueing. FFSGAL...

The credit is due to the photographer for one.
The sculptor benefits hugely from having his work on stamp.
The lawsuit should fail.
And it will.

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