Sculpture of The United States - Legal Issues Regarding Photographs

Legal Issues Regarding Photographs

United States courts have consistently held that sculptors maintain an intellectual property right to sculptures and are entitled to compensation if photographs are used for commercial purposes. The rights apply even if the sculptor no longer owns the sculpture or is even in a public space. The sculptor however could sign away those rights. Some other countries such as Germany give permission to take the photographs via the concept of Panoramafreiheit.

On February 25, 2010, the United States Court of Appeals for the Federal Circuit ruled 2-1 that the Frank Gaylord, sculptor of the Korean War Veterans Memorial was entitled to compensation because an image of it was used on a 37 cent postage stamp and he had not signed away his intellectual property rights. The appeals court rejected arguments that the photo was transformative.

In 2002 amateur photographer and retired Marine John All paid was $1,500 to use one of his photographs of the memorial on a snowy day for the stamp which sold more than $17 million worth of stamps. In 2006 sculptor Frank Gaylord enlisted Fish & Richardson to make a pro bono claim that the Postal Service had violated his Intellectual property rights to the sculpture and thus should have been compensated. The Postal Service argued argued that Gaylord was not the sole sculptor (saying he had received advice from federal sources – who recommended that the uniforms appear more in the wind) and also that the sculpture was actually architecture. Gaylord won all of his arguments in the lower court except for one…the court ruled the photo was fair use and thus he was not entitled to compensation. Gaylord appealed and won the case on appeal. On April 22, 2011, The US Court of Claims awarded Gaylord $5,000.