Transformativeness - Photos of Sculptures

Photos of Sculptures

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

In 2002 amateur photographer and retired Marine John All was paid $1,500 to use a photograph of his of the memorial on a snowy day for the stamp. More than $17 million worth of the stamps were sold. In 2006, Gaylord enlisted Fish & Richardson to make a pro bono claim that the Postal Service had violated his Intellectual property rights to the sculpture and he should be compensated. The Postal Service 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 that the photo was fair use and thus Gaylord was not entitled to compensation. Gaylord appealed and won. The case could have been appealed to the United States Supreme Court or damages can be assessed by the lower court but on April 22, 2011, The US Court of Claims awarded Gaylord $5,000.