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December 22, 2008

Postal Service stamps out Korean War memorial copyright challenge

Image Artist Frank C. Gaylord sculpted from the heart when he created the 19 stainless steel soldiers that together make up "The Column," the core of the Korean War Veterans Memorial in Washington, D.C. He felt ripped off when the U.S. Postal Service issued a commemorative stamp depicting The Column. He sued, demanding 10 percent of the revenues from sales of the stamps.

Now, he's lost. The rendering on the stamps amounted to "fair use" of Gaylord's distinctive, copyrighted art work, the U.S. Court of Federal Claims has ruled in a case that sheds new light on how bureaucracies shape public art.

Trial testimony, for instance, revealed that the memorial's advisory board directed that one of the soldiers in The Column be modified so he looked Hispanic. Wrinkles were removed from other soldiers, a squatting soldier was stood up and grizzled soldiers became clean-shaven. One might speculate as to the reasons for such changes.

In July 2003, the Postal Service issued a stamp based on a winter-time photograph taken of The Column. It was a big seller, with some 86.8 million stamps issued. Good deal for the Postal Service, too; it only paid $1,500 to the photographer for use of the image. Gaylord was paid nothing.

Even with the ordered changes, Judge Thomas Wheeler determined that Gaylord is the sole copyright holder on The Column. Nonetheless, Wheeler concluded that the stamp was itself a "transformative" work in which the photographer who took the picture of The Column in essence created a new work. Moreover, the judge determined the stamp is unlikely to financially harm Gaylord's ability to profit from his enduring copyright.

It's a tough break for Gaylord, and not just because he stood to gain millions in dollars in royalties from stamp sales. A former World War II Army paratrooper, Gaylord knows soldiering from the ground up, from his own service in the 17th Airborne Division. He brought that intimate knowledge to bear during the five years he spent crafting The Column in his Vermont studio.

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mike

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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