The Artful Jurist

It’s Cherry Blossom Festival time here in the nation’s capital, and the town is crawling with tourists, many of whom are taking in the various sights and snapping away photo after photo of the iconic monuments and statuary that grace the National Mall. All those cameras and all those photos raise an interesting legal question: What if you take a photo of a public sculpture and then use that photo for some type of commercial purpose? Is that legal?

A case involving just this type of copyright issue was decided last month by the Court of Appeals for the Federal Circuit. In the case of Gaylord v. United States, artist Frank Gaylord sued the federal government because the Post Office put a photographic image of the artist’s sculpture on a stamp without the artist’s permission. The sculpture is the Korean War Memorial sculpture (titled The Column) located on the National Mall in Washington, D.C. The sculpture, which represents soldiers tramping through the rice paddies of Korea, was photographed by another man, who sold the Post Office the right to reprint the photo onto a commemorative stamp. Mr. Gaylord, whose permission wasn’t sought, sued for copyright infringement.

Initially, the lower court said the photograph, and its intended purpose on a postage stamp, was a transformative work of art that made it a fair use under the copyright laws. However, the appeals court decision reversed that finding, saying Mr. Gaylord’s copyright as the artist was not superseded by the photographic image of the underlying work. In the court’s words, “Even though the stamp did not harm the market for derivative works, allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case.”

The case has been remanded to the lower court for a determination of damages owed to the artist.