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Court Rules Photo of Memorial Violates Copyright

kdawson posted more than 4 years ago | from the stamp-of-disapproval dept.

The Courts 426

WhatDoIKnow sends in a story about an appeals court ruling in a singular case that might have the effect of narrowing "fair use" rights for transformative uses of artworks. "The sculptor who designed the Korean War memorial [in Washington DC] brought suit against the Postal Service after a photograph of his work was used on a postage stamp. Though first ruled protected by 'fair use,' on appeal the court ruled in favor (PDF) of the sculptor, Frank Gaylord, now 85."

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I suppose (5, Funny)

Anonymous Coward | more than 4 years ago | (#31309686)

he's more obnoxious than a Reserved Gaylord.

CANADA GOLD IN HOCKEY! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31309938)

Way to go Canada!!! GO CANADA GO!

Mod this up if you love hockey!

Re:CANADA GOLD IN HOCKEY! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31309970)

I have no mod points but

GO CANADA! First we beat the american scum on the ice, next is the battlefield

Re:CANADA GOLD IN HOCKEY! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31310516)

I know this is off topic (don't waste your mod points), but didn't Canada lose to the USA once during these Winter Olympics?

A slap in the face to all American veterans. (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31310122)

This is nothing more than a huge slap in the face to all American veterans, of any conflict.

My grandfather was in Korea, and he made what's perhaps the most ultimate sacrifice short of his life: his genitals. Thankfully, he had three kids by the time he was sent over, one of them being my mother. But it still apparently left him a very changed man, more so than most veterans.

I am glad that he is no longer around, to spare him from having to hear of this disgraceful ruling. Many of his friends' names were on that monument.

Re:A slap in the face to all American veterans. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31310198)

lol, a chink ho bit his nuts off? just remember, with a $5 sucky-sucky, you get what you pay for.

Re:A slap in the face to all American veterans. (2, Interesting)

dimeglio (456244) | more than 4 years ago | (#31310400)

Appeals court rulings are overturned frequently by supreme courts (google it) - if they hear the case (which the blatantly should). US postal service should be able to get there. I'm not worried but then again I'm not in the US. Why are there so many cases where there is a reversal is strange and can be infuriating.

isn't the memorial already in the public domain? (5, Insightful)

jjoelc (1589361) | more than 4 years ago | (#31309690)

Silly me... I thought the point of a memorial was for it to be placed in the trust of (or outright given to) the public... That being the case, how does this decision affect other images of public art?

Re:isn't the memorial already in the public domain (2, Interesting)

timeOday (582209) | more than 4 years ago | (#31309758)

Yeah I don't get it, when somebody comissions an artwork, don't they therefore own the artwork? In this case that would be all of us.

Re:isn't the memorial already in the public domain (5, Informative)

nedlohs (1335013) | more than 4 years ago | (#31309862)

from TFA:

"she went over all of the available documents and found that they expressly kept those [IP] rights with Gaylord"

So no the idiots at the Army Corps of Engineers who signed the contract for this didn't in fact get ownership of anything other than the physical sculpture.

Re:isn't the memorial already in the public domain (3, Insightful)

Darkness404 (1287218) | more than 4 years ago | (#31309988)

And shouldn't any photos of the memorial be under the copyright of whoever takes the picture? For example, although the design for, say an iPhone may be under copyright, I can still take a picture of it and Apple isn't going to claim copyright of it. Now, if I took a press shot of it, they might have a case, but an individual picture? No, they aren't going to do anything.

Re:isn't the memorial already in the public domain (1)

nedlohs (1335013) | more than 4 years ago | (#31310184)

No, it becomes a derivative work.

You can't take a photo of a photo to get around the photographer's copyright, for example.

There are exceptions to this, but sculpture isn't one.

Re:isn't the memorial already in the public domain (3, Insightful)

aaarrrgggh (9205) | more than 4 years ago | (#31310372)

You can't make a copy in the same medium (photo of photo), but to say that a photo of a statue is a violation of copyright is plain stupid.

Re:isn't the memorial already in the public domain (5, Insightful)

nedlohs (1335013) | more than 4 years ago | (#31310394)

It's hardly the first time copyright law has been called stupid.

Re:isn't the memorial already in the public domain (2, Interesting)

GrubLord (1662041) | more than 4 years ago | (#31310228)

I think it's more about whether you're making profit from the picture, and what about the image - precisely - you are monetizing.

If you sold your photo to a magazine for an iPhone-related article, you're in the clear because you are illustrating an existing product, and the value of the image lies in the skilful portrayal of the object in question.

If you sold the photo to Chinese bootleg manufacturers so they can replicate the UI, or started making money off your revolutionary new idea, which you call the "CoolPhone", and sending that photo to people as the appearance of an "early prototype CoolPhone", then you are likely infringing because you bring nothing to the table yourself, but rather are making money off of Apple's copyrighted product design.

Re:isn't the memorial already in the public domain (0)

Anonymous Coward | more than 4 years ago | (#31310302)

Um no, if you tried to use a pic of the iPhone as a stamp, and made profit off of it, I could see you getting into trouble. The only issue here is who owns the IP, and if he does, then they can't really use it as their little logo thing...

Re:isn't the memorial already in the public domain (1)

mjwalshe (1680392) | more than 4 years ago | (#31310058)

I thought stuff done by the us govenment was defacto in the public domain - similar to the library of congress images and maps created by govenment.

Re:isn't the memorial already in the public domain (2, Interesting)

Anonymous Coward | more than 4 years ago | (#31310440)

The issue at hand is the use of the specific picture in a postage stamp. The postal service could have gotten around this issue by taking another picture at a similar/same angle using their own cameras in the snow. However, they did not seek proper usage for the underlying image on which the stamps are based.

Not all stuff done by the government is in the public domain - such as work by contractors, and other works where the government pays for services. In those cases, you have to especially careful to look into rights and ownership.

Public domain images may be public domain, but often times additional rights restrictions do exist based on their source. See, some NASA images.

Re:isn't the memorial already in the public domain (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31310492)

They should return the sculpture to the sculptor!

Re:isn't the memorial already in the public domain (1, Interesting)

Hognoxious (631665) | more than 4 years ago | (#31310520)

Same with the European Parliament and the London Eye.

id melt it down and get it remade into somehting (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31310530)

..public can photo.
and put a note "re sculpted because original ass sued someone"

Re:isn't the memorial already in the public domain (1)

the eric conspiracy (20178) | more than 4 years ago | (#31309870)

Depends on the contract. Look at wedding photographers - often if not they retain the copyrights.

Re:isn't the memorial already in the public domain (1)

nigelo (30096) | more than 4 years ago | (#31310452)

Hardly the same thing, is it? They are retaining rights to the photos, surely.

Unless you mean photos of the cake?

Re:isn't the memorial already in the public domain (1)

Eth1csGrad1ent (1175557) | more than 4 years ago | (#31309920)

I don't get it. A post is marked "Interesting" for asking a question that is already covered IN DETAIL in TFA!
The artist won a competition to design the memorial. At no stage was he paid, or contracts entered into...

Re:isn't the memorial already in the public domain (1, Insightful)

MrHanky (141717) | more than 4 years ago | (#31310128)

It's because the question is loaded with a popular Slashbot viewpoint. Most moderators are idiots, most Slashbots are pirates. They think they're entitled to full ownership of other people's work.

Re:isn't the memorial already in the public domain (0)

Anonymous Coward | more than 4 years ago | (#31310360)

While I would normally agree with you in this case I would say that if the person doesn't want to let people photograph his work, he probably shouldn't have created it in full public view. Instead, he could have created it in a darkened room and not allowed cameras to be brought in. When you create a public memorial for the public - you pretty much have said this is in the public domain. Anything else by the artist and they are just acting like a douchebag.

Re:isn't the memorial already in the public domain (3, Interesting)

Cryptnotic (154382) | more than 4 years ago | (#31310142)

I don't get it. A post is marked "Interesting" for asking a question that is already covered IN DETAIL in TFA!

You must be new here.

Re:isn't the memorial already in the public domain (3, Insightful)

Ghostworks (991012) | more than 4 years ago | (#31309924)

They own the piece of art. They don't own the work. For example, if you buy one of two hundred prints of an artist's latest painting, you just own a print, but the artist retains ownership of the IP (the painting) and all copies (the print). You wouldn't be able to just photocopy (or, according to this court ruling, photograph) and distribute the copies freely. One of the best -- and most annoying -- examples is wedding photos, which the photographer usually retains rights to, even if he sells you prints.

The same is true even if you're sold original works, not copies (such as books, replica painting) or even a singular work (the only existing sculpture, like in this case). This is why copyrights are supposed to expire: eventually, all art should belong to mankind as a whole as part of our common culture. The founding fathers never intended for anyone to be able sit on his laurels and live off a single work for his entire life, much less for three generations of his estate to benefit after his death.

As has already been noted, the interpretation of a picture of a monument as a derivative work subject to protection under copy right is harsh narrowing of fair use rights. While non-profit "reproductions" (say, vacation photos in front of the memorial) would probably still be considered fair use, it gives IP owners with a litigious mindset a very big stick.

Re:isn't the memorial already in the public domain (1)

Great Big Bird (1751616) | more than 4 years ago | (#31310480)

Look up something called Moral Rights.

Re:isn't the memorial already in the public domain (0)

Anonymous Coward | more than 4 years ago | (#31309770)

The post office is making profit out of it by selling stamps. The incredulous part is how it paid a photographer $1,500 for the rights for a sculpture commissioned by the US govt. In essence, the govt. is suing itself which is weird but not uncommon.
It would be Fair Use if the photographer received no compensation ($1,500) and the stamps were "free"

Re:isn't the memorial already in the public domain (1)

nedlohs (1335013) | more than 4 years ago | (#31309896)

The government is not suing itself a private individual is suing the government for "stealing" his work (in the language the government likes to use for IP infringement).

Re:isn't the memorial already in the public domain (0, Troll)

mellon (7048) | more than 4 years ago | (#31309996)

I think you don't know what "incredulous" means. And the post office doesn't make a profit by selling stamps - it loses a small amount of money on every one, because stamps are used to mail things, and mailing things generally costs more than you paid for the stamp.

Re:isn't the memorial already in the public domain (3, Insightful)

uvajed_ekil (914487) | more than 4 years ago | (#31309772)

Silly me... I thought the point of a memorial was for it to be placed in the trust of (or outright given to) the public... That being the case, how does this decision affect other images of public art?

Scary, or perhaps stupid, or even ridiculous. This was commissioned by Congress and occupies space in a public park. It belongs to the United States, so we should be able to use images of it just as we do with the other public buildings and monuments we own. It is a beautiful monument to those who risked and gave their lives for us. If some blowhard "artist" wants to retain all image rights to his work, then he should keep a piece for himself, not expect us to build a setting for it and maintain it. Plenty of artists could have created something as significant without being assholes about it.

Re:isn't the memorial already in the public domain (1)

uvajed_ekil (914487) | more than 4 years ago | (#31309808)

BTW, I'm sure WE paid for it, too. It is massive and huge in scale, so I sincerely doubt the artist footed the cost out of pocket and just donated it all. So should I insist on retaining rights to all work I do, even when someone else pays me to do it and I do not negotiate such rights beforehand?

Re:isn't the memorial already in the public domain (1, Troll)

mdwh2 (535323) | more than 4 years ago | (#31309866)

Indeed, and furthermore, I believe it's the case that all works produced by the US Government are explicitly released into the public domain.

And it's not as if this is something he built himself. Why does the designer own the copyright, and not the people who constructed it? God knows what kind of contract they must have had...

It's nice to know all those people died, so that other people could have the "freedom" to grow old making money for doing nothing.

Re:isn't the memorial already in the public domain (3, Insightful)

NeutronCowboy (896098) | more than 4 years ago | (#31310026)

The people who approved this contract ought to be drawn and quartered. Not only did the guy get paid royally for his work, he gets to keep the IP without actually contributing anything to its maintenance. I couldn't find anything about how much the upkeep is, but it seems to me that if the guy wants to keep control over his work, he ought to maintain it himself, along with the park in which it stands. If he doesn't want to do that, he clearly is not interested in keeping control of it.

Re:isn't the memorial already in the public domain (5, Insightful)

Just Some Guy (3352) | more than 4 years ago | (#31310294)

Scary, or perhaps stupid, or even ridiculous. This was commissioned by Congress and occupies space in a public park. It belongs to the United States, so we should be able to use images of it just as we do with the other public buildings and monuments we own.

And the Corps of Engineers should be able to take the damn thing to a safe place and blow it up. I'd rather see it destroyed than stand in mockery of the men it commemorates.

Re:isn't the memorial already in the public domain (1)

thegrassyknowl (762218) | more than 4 years ago | (#31310332)

Well, I'm never going to DC to see it, and since taking photos of it is a violation of his copyright I suppose I'll never see it. Gaylord (what an unfortunate name, BTW) is an idiot. Now, instead of millions seeing his creation only the handful of people who actually venture to DC then venture to the area where it is will get to see and enjoy it.

If this tool wants to restrict the viewing of his creation then so be it. It's his loss that so many people will miss out on it. Artists just don't seem to have the cognitive capacity to understand that. To be an artist is to desire others to see your work (usually), and in this case since he's put it on public display I'd say he wants that. To prevent people from seeing it one way or another is counter intuitive to that desire. Not only that, but he's moved the protection of intellectual property slightly further in favour of the greedy. This is counter to the very principles of copyright and art in general.

This is one more case of yet another greedy fool deciding that there's a quick buck to be made.

*grumbles* I agree with the sentiment of other posters though; this Gaylord was commissioned by the US to create an art for a US-owned memorial. He expects the US to maintain and display his creation for him. I presume that the government covered the material costs of construction. I'd demand that since it is a memorial to those fallen at wartime, commissioned by the government it should fall squarely into the public domain.

All that said, he didn't get paid (from what I understand) so I'd say it would have been fair for him to ask for a token sum of money from the sale of the stamps. But taking them to court with outrageous demands? That's just going too far.

Re:isn't the memorial already in the public domain (1)

b4upoo (166390) | more than 4 years ago | (#31309958)

Even worse a photo of a sculpture does not replicate the sculpture. That is the overwhelming fact when the photo is a reduced drawing on a stamp. Then the next issue is that the selling of an object should convey absolute rights to the new owner and disolve all rights of the seller. The moral and ethical issues of copyright are so twisted that copyright needs to be eliminated.

Contract may have let artist retain commercial use (1)

perpenso (1613749) | more than 4 years ago | (#31310084)

Silly me... I thought the point of a memorial was for it to be placed in the trust of (or outright given to) the public... That being the case, how does this decision affect other images of public art?

The public display of art is not in question here, it is the commercial use of this art.

How could this situation have developed? Quite simply the artist may have offered his/her services at a discount if he/she could retain the commercial rights to the art. Congress gets their public memorial but leaves things like the manufacture and sale of miniatures to the artist. This could be a reasonable cost savings tradeoff.

Think of some software licenses, an application may be free for non-commercial purposes but require a paid license for commercial use. Like software developers, artists are free to negotiate whatever contract/license they can.

--
Perpenso Calc [perpenso.com] for iPhone and iPod touch, scientific and bill/tip calculator, fractions, complex numbers, RPN

Re:isn't the memorial already in the public domain (0)

Anonymous Coward | more than 4 years ago | (#31310454)

I say if the artist is going to be this way about a supposedly public sculpture, then perhaps it should be covered with a tarp and removed from public view until it can be removed from being in a public location. Then that would ensure that nobody infringes upon his copyright again.

Also in the future, any gov't sponsored public artworks should require a release of copyright to the gov't (and therefore public domain) to make sure this kind of stupidity doesn't happen again.

Re:isn't the memorial already in the public domain (1)

John Hasler (414242) | more than 4 years ago | (#31310500)

> Silly me... I thought the point of a memorial was for it to be placed in the
> trust of (or outright given to) the public...

Perhaps you should have told the government that fifteen years ago so that they would have purchased the copyright (hint: they didn't).

> That being the case, how does this decision affect other images of public
> art?

I doubt that it has any relevance at all to most. Read the opinion.

What an idiot (0, Troll)

robinstar1574 (1472559) | more than 4 years ago | (#31309696)

Why wouldn't... oh right... this is the US government we're talking about. I wouldn't want to be represented on a piece of official parchment by the giant goblet of horror.

Guess it was never ours (5, Insightful)

MillionthMonkey (240664) | more than 4 years ago | (#31309712)

Knock down his statue, break it into a million pieces, and send them all to his house using the infringing stamps.

Re:Guess it was never ours (1)

Kpau (621891) | more than 4 years ago | (#31309868)

I'm up for that. Actually, dumping them on the judge's lawn might be the next best thing. What an inordinately stupid ruling. Sooooooo, if my kid *sketches a public piece of art (or hell, wanders into an art museum and sketches) - this is verboten? Sounds like the wrong rules were invoked.

Re:Guess it was never ours (1)

TheABomb (180342) | more than 4 years ago | (#31310486)

Actually, most museums DO HAVE official "Sketching Policies" detailing which, if any, pieces in their collections you may or may not sketch.

Re:Guess it was never ours (1, Funny)

Anonymous Coward | more than 4 years ago | (#31310196)

Well that's an idea. But how about changing the stamps up a little bit so that they fall under fair use instead of further infringing? Apparently the court's view is that a new work must make some sort of criticism or commentary to fall under fair use. So I'd suggest the stamp as originally designed except with the criticism/commentary "Frank Gaylord is an asshole" printed across them so that they constitute fair use as defined by the court.

Re:Guess it was never ours (1)

UnknowingFool (672806) | more than 4 years ago | (#31310528)

That's not the scope of the ruling. The government paid for and owns the sculptures. However, they never acquired the rights to sculpture. All they have is ownership of a copy. Granted there is only one copy in existence but that is the limit of their ownership. Just like when I buy a CD, I don't own the rights to the song; I own the copy. Since the government didn't have rights to the sculpture they cannot give rights to the Postal Service to make stamps off it. Postal Service didn't have ownership of the copyrights either so they did not have rights to make money off the stamp.

This is probably not done but another fine point to make is commercial vs private use. If I were to take a photo of the sculptures for my own photo collection, that would probably fall under fair use. Since the Postal Service was making money off it, that muddies the waters a bit.

Does this post violate copyright law? (4, Interesting)

Anonymous Coward | more than 4 years ago | (#31309730)

Re:Does this post violate copyright law? (1)

calmofthestorm (1344385) | more than 4 years ago | (#31309824)

Only if I pay you for it. That's a really nice picture btw.

Re:Does this post violate copyright law? (1)

xerent_sweden (1010825) | more than 4 years ago | (#31309840)

The artist, Frank Gaylord, probably was paid for his artwork back in the days. So if I sell you a painting, can't you do anything you want with it – including selling pictures of it on postal stamps to others?

Re:Does this post violate copyright law? (1)

calmofthestorm (1344385) | more than 4 years ago | (#31309886)

Depends on whether he assigned ownership. I'd answer your question better, but that would involve reading TFA and that's not what /. is about. If I wanted to have informed opinions, I'd get back to work:P

Re:Does this post violate copyright law? (0)

Anonymous Coward | more than 4 years ago | (#31310200)

"Depends on whether he assigned ownership. "

I thought that in the case of "work for hire" the copyright was automatically assigned to the person doing the hiring unless a contract specified otherwise. And if that's the case, that was a pretty dumb contract.

Re:Does this post violate copyright law? (1)

mdwh2 (535323) | more than 4 years ago | (#31309902)

Also see all the pics on http://en.wikipedia.org/wiki/Korean_War_Veterans_Memorial [wikipedia.org] (not to mention any other pictures of memorials, buildings, and so on). Whilst Wikipedia could have a better chance of claiming fair use (as they're not there for profit), at the moment the images are tagged as public domain, or whatever the author of the photo chose to release them as. This is important for cases where the pages might be used for profit or commercial use in general (as is allowed by the free licences that Wikipedia is released under, of course)

Hopefully Wikipedia will stick their finger up at suggestions for the photos to be removed.

Is this one of those... (5, Funny)

xerent_sweden (1010825) | more than 4 years ago | (#31309748)

Is this one of those... monumental rulings?

Re:Is this one of those... (0)

Anonymous Coward | more than 4 years ago | (#31310034)

This is called a statue of limitations.

Re:Is this one of those... (4, Funny)

turing_m (1030530) | more than 4 years ago | (#31310326)

Is this one of those... monumental rulings?

TFA says that the government could petition the U.S. Supreme Court for review, so I take it that matters aren't yet... set in stone.

Was this judge elected? If so, by whom? (0)

Anonymous Coward | more than 4 years ago | (#31309754)

It's a public monument. Get over it. Judge apparently hadn't taken his meds.

Not elected (4, Informative)

MillionthMonkey (240664) | more than 4 years ago | (#31309888)

The U.S. Court of Federal Claims is comprised of 16 judges nominated by the president and confirmed by the Senate.

Judge Thomas C Wheeler was nominated in June 05 and confirmed in October 05 for a 15 year term. His prior experience was 10 years as a lawyer for corporate law firm DLA Piper.

Re:Not elected (1)

mjwalshe (1680392) | more than 4 years ago | (#31310082)

what you can get apointed as a Judge with no "Judgeing" experiance

Re: No Experience (0)

Anonymous Coward | more than 4 years ago | (#31310214)

Ya gotta start somewhere.

Re:Not elected (1)

dbIII (701233) | more than 4 years ago | (#31310370)

Heck of a job Wheeler!
Perhaps he should be judging horses along with the other blatant political appointee that was way out of his depth.
The last few years should be a lesson to the USA that heading down the road towards absolute monarchy was a pretty stupid step backwards.

Re:Was this judge elected? If so, by whom? (0)

Anonymous Coward | more than 4 years ago | (#31310016)

Was this judge elected? If so, by whom?

This was an appeals court ruling. There was not one judge, but three. Two ruled in Gaylord's favor. US Federal judges are not elected. They are appointed by the President and approved by the Senate. They serve life terms. Federal judges can only be removed from office for misconduct (such as taking a bribe). That requires a trial in the Senate and super-majority votes in both houses of congress. Congress can not remove a judge simply because they disagree with a ruling and they are loathe to even try it.

Re:Was this judge elected? If so, by whom? (0)

Anonymous Coward | more than 4 years ago | (#31310258)

I guess you can scratch that life term. It seems congress has decided they should set up some courts separate from those spelled out in Article III of the constitution. As another poster indicated Judges in the Court of Federal Claims are appointed for 15 years. So much for an independent judiciary.

It's called a "stamp" not a "photo"... (4, Interesting)

LostCluster (625375) | more than 4 years ago | (#31309818)

It's okay to take a photo of a sculpture but it's not okay to use that photo to market your service, such as the way the USPS was trying to do with this stamp. This is part of the reason they make sure people are dead for a good long time before they honor them with a postage stamp.

Re:It's called a "stamp" not a "photo"... (3, Interesting)

Darkness404 (1287218) | more than 4 years ago | (#31310048)

Why not? Look at all the things marketed through sculptures. Is it wrong for Toronto to promote their city using the CN Tower? Heck, is it wrong for Washington DC to use it to promote their city? Throughout history, people have used landmarks to promote things, and there has been no lose do to it. I see no difference in this.

Re:It's called a "stamp" not a "photo"... (1)

MillionthMonkey (240664) | more than 4 years ago | (#31310098)

It's okay to take a photo of a sculpture but it's not okay to use that photo to market your service, such as the way the USPS was trying to do with this stamp. This is part of the reason they make sure people are dead for a good long time before they honor them with a postage stamp.

That doesn't make any sense. If you take a picture of me, it's not as if I retain any authorship rights to my own face. The "living persons" rule does apply to images of people on U.S. stamps, but not to images of sculptures AFAIK.

Now this is a quote from the findings in the ruling:

Analysis of the purpose and character of the use also includes whether the “use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. 107. The Postal Service acknowledged receiving $17 million from the sale of nearly 48 million 37-cent stamps. An estimated $5.4 million in stamps were sold to collectors in 2003. The stamp clearly has a commercial purpose. The Court of Federal Claims did not address how the commercial purpose of the stamp affected this factor of the fair use analysis.

This gets down to the question of what a stamp is for. Is the $5.4 million figure even relevant? All those stamp collectors can still mail letters with those stamps.

Failed Work for Hire (1)

tjstork (137384) | more than 4 years ago | (#31309828)

The guy made the sculptor as a work for higher of the American people, but obviously someone signed a bad contract along the way, or, to put it another way, the artist ripped off the American people. I guess I'll just have to add him to my piss on someone's grave tour, but in his case I should take a photo of it.

Stupid bureaucrats (2, Interesting)

Eth1csGrad1ent (1175557) | more than 4 years ago | (#31309852)

FTA - noone actually ever paid the artist for the work, and I assume it wasn't stipulated in the rules of the competition (that the artist won) that the work, and any IP related to the work, would become public domain if he won.

Looks like a stupid oversight on behalf of the original organisers and the Postal Service for not enquiring about ownership.
Due diligence on the part of the Postal Service wouldn't have gone astray either.

I'm not sure where the outrage is coming from...

Re:Stupid bureaucrats (5, Informative)

Dachannien (617929) | more than 4 years ago | (#31310032)

From the court decision, Mr. Gaylord was paid $775k by the United States for his part of the work, and the primary contractor (who hired Mr. Gaylord directly) was paid over $5M (p. 5 of dissent).

Personally, I'm rather confused as to how this case turned out this way. The dissent offers a very strong argument for why the government already has a license to use the artwork however it sees fit, and it also notes a federal law which should disqualify a claim against the government in this case. The US should at least try to get the CAFC to hear this case en banc, because it seems that the majority in this case overlooked some important details.

Fair Use (5, Insightful)

sys.stdout.write (1551563) | more than 4 years ago | (#31309864)

From the opinion...

Fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

17 U.S.C. 107

This is the law. This is not how the Postal Service used his copyrighted work. As an aside, this is also not what Tenenbaum et al. did when they downloaded music.

We shouldn't complain when judges use restraint and don't bastardize statutes.

Re:Fair Use (3, Interesting)

jjoelc (1589361) | more than 4 years ago | (#31309936)

Notice in my original post, I never lambasted the judge... just the idea that a war memorial, in a public place, commissioned by the public (er... gov't in this case, but isn't that supposed to be the same here?)

Given those circumstances... shouldn't it be a reasonable assumption that the rights for the memorial also be placed in the public trust?

I agree... Bad contract from the start that let this slip through.

Re:Fair Use (3, Funny)

Nimey (114278) | more than 4 years ago | (#31309962)

Judicial activism is when a judge does something I don't like.

Re:Fair Use (3, Informative)

Kjella (173770) | more than 4 years ago | (#31310206)

Fair use is determined by the four factor test and that list is not exhaustive, for example "timeshifting" which was vital to the Betamax case is not listed nor covered by any of the others. So the only one bastardizing the statutes here is you, by asserting that it can't be fair use since it's not on the list.

Re:Fair Use (4, Informative)

Jeremy Erwin (2054) | more than 4 years ago | (#31310532)

I don't think you understand copyright law. A finding of fair use requires that the derivative work survive the "four factor test". Mere inclusion in the category of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is neither neccessary nor sufficient for a finding of "fair use".

The task is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).

Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994). [cornell.edu]

This will get appealed again. (5, Informative)

fluffy99 (870997) | more than 4 years ago | (#31309904)

The underlying problem is that copyrights were improperly assigned to Gaylord in the first place. Being under contract to the govt, those copyrights should have been assigned to the govt. In fact the contracting officer has been and still is demanding that those improperly assigned copyrights be turned over. The court wasn't allowed to challenge the validity of those copyrights and had to take them at face value.

Re:This will get appealed again. (4, Insightful)

OzPeter (195038) | more than 4 years ago | (#31310130)

The underlying problem is that copyrights were improperly assigned to Gaylord in the first place.

I think the word you are actually looking for is something like "erroneously" or "stupidly". It seems like the copyrights were properly assigned.

Re:This will get appealed again. (1)

fluffy99 (870997) | more than 4 years ago | (#31310464)

The underlying problem is that copyrights were improperly assigned to Gaylord in the first place.

I think the word you are actually looking for is something like "erroneously" or "stupidly". It seems like the copyrights were properly assigned.

The govt in its arguments used the word "improperly assigned" so I stuck with that. Erroneously implies by mistake to me. Gaylord wasn't the sole holder so it was improper to have assigned him a copyright saying so. A bit ironic as it was a govt office that screwed that up.

That is so typical for a gaylord. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31309940)

Was the judge a gaylord too?

Wasn't sculpture made from the famous photo? (3, Interesting)

Anonymous Coward | more than 4 years ago | (#31309952)

Call me crazy, but wasn't the sculpture created from a photo? Hmmmm...

Statutory Damages... (4, Insightful)

Telephone Sanitizer (989116) | more than 4 years ago | (#31310008)

17 million sales of $.37 stamps = 46 million or so stamps actually produced.

Statutory damages can run from $750-$30,000 per copy, assuming that it wasn't a willful infringement.

That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion). Plus attorney's fees, of course. Roughly last year's federal deficit not counting off-budget spending bills.

Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?

Re:Sorry. Typo. (1)

Telephone Sanitizer (989116) | more than 4 years ago | (#31310042)

That should have started, "With $17 million in sales..."

Re:Statutory Damages... (3, Informative)

mr_matticus (928346) | more than 4 years ago | (#31310072)

That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion).

No, it's a minimum award of $750 and a maximum of $30,000, assuming no willful infringement.

Statutory damages are per work, not per copy.

Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?

Complete non-sequitur. Is a $30,000 penalty for a corporation misusing someone else's property too high? Of course not. Is the same penalty too high for a kid who is pirating music for his iPod? Almost certainly.

Re:Statutory Damages... (1)

YesIAmAScript (886271) | more than 4 years ago | (#31310092)

The damages depend on how much of the value of the stamp is derived from the picture on it. Most of the value of the stamp is tied up in what it can do for you (convince the USPS to deliver your letter/package), not the picture on front.

Re:Statutory Damages... (2, Informative)

Theaetetus (590071) | more than 4 years ago | (#31310114)

17 million sales of $.37 stamps = 46 million or so stamps actually produced.

Statutory damages can run from $750-$30,000 per copy, assuming that it wasn't a willful infringement.

That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion). Plus attorney's fees, of course. Roughly last year's federal deficit not counting off-budget spending bills.

Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?

I would care to argue that... Mainly because you're misquoting the statute. 17 USC 504(c)(1) says: "... the copyright owner may elect... an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $ 750 or more than $ 30,000 as the court considers just."

It's $750-$30k per work, not per copy. This was specifically changed in 1976 - from the original copyright act of 1790 through the many revisions until 1976, statutory damages were per copy... usually per sheet, even, although damages were much lower. But still, a 500 page book would be 500 separate sheets, at 50 cents per sheet in 1790, or $250 per copy of the book.

Anyways, this is a single work, so damages would be between $750 and $30k, or up to $150k if it was willful, but not the billion or trillion you posit.

What a jackass (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31310022)

The guy thinks too much of himself and his work, imo. I mean something like that should be seen as given to the public rather than having some guy controlling it like it's gold. In fact I think the latest developments in copyright are making everyone think their work is much more important than it is.

The government should give the memorial back to him and tell him to get bent.

Did MY Tax Dollars Pay for This? (1)

WED Fan (911325) | more than 4 years ago | (#31310090)

Is this on public land? Did the artist get public dollars?

Re:Did MY Tax Dollars Pay for This? (1)

kalidasa (577403) | more than 4 years ago | (#31310428)

I believe such monuments are usually funded by subscription by private organizations; and I find evidence that such is the case for this Memorial. So, NO, your tax dollars did not pay for this, though it is on public land; I do not know if the Federal government maintains the site or a private organization does so (as is the case with e.g. Monticello).

Business Opportunities (2, Interesting)

gmuslera (3436) | more than 4 years ago | (#31310162)

Setting precedents opens the door to business opportunities. Just put a sign or whatever near very public and photographed places, and sue any publication that from now on include photos of those places because they are sharing your sign too. Even a grafitti could eventually do the work.

Yank Stamps Story (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31310296)

wtfayboa?

This is stupid -- sculptures were not "copied" (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31310298)

If the Post Office were making 3D sculptures that duplicated the ones in the memorial and selling them, I could understand. But this is a PICTURE of the sculpture. The sculptures are not being duplicated.

If this ruling stands people won't even be able to take a picture of a building or a car without violating copyright.

The postal service should just use the photo (2, Insightful)

FeriteCore (25122) | more than 4 years ago | (#31310318)

The monument itself is based on a famous photo. The postal service should have bypassed the monument new artwork for the stamp based on the photo.

Did the sculpter pay royalties to Joe Rosenthal [wikipedia.org] the photographer? Or to the AP, which employed him? If not, this is the height of hypocracy.

Re:The postal service should just use the photo (2, Informative)

PacoCheezdom (615361) | more than 4 years ago | (#31310434)

The memorial that looks like Rosenthal's famous photograph of the flag being raised on Iwo Jima is the Marine Corps Memorial in Arlington VA. This article is about the Korean War Memorial in Washington DC. I mean, I know that nobody reads the articles here but seriously the Iwo Jima battle wasn't even during the Korean War -- it was WWII.

Something from Nothing (3, Insightful)

NicknamesAreStupid (1040118) | more than 4 years ago | (#31310368)

When a society ceases to produce real property, the value of intangible property virtually soars. Even our money is no longer tangible, as vastly larger sums flow through wires than through hands. Someday, free speech will not be, as the government will see it as the last bastion of tax revenues.

Re:Something from Nothing (1)

kalidasa (577403) | more than 4 years ago | (#31310442)

I certainly hope you don't characterize "real estate" as "real property." The owner of real estate owns something just as abstract as the owner of Intellectual Property does - the right to use and occupy land. Ultimately, all property is abstract: if you hand me a five dollar bill to look at, does it become my property because it is in my possession, or does it remain your property?

What an ironic name (-1)

Anonymous Coward | more than 4 years ago | (#31310388)

What an ironic name, given he's such a big faggot. [southparkstudios.com]

I see no "narrowing". (3, Insightful)

John Hasler (414242) | more than 4 years ago | (#31310398)

I read the decision as a straightforward and reasonable interpretation of fair use. It may clarify some points, but I don't see that it narrows fair use.

At issue is what is transformative (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31310402)

What about Warhol and the Cambells soup cans?

Warhol was able to make a work of art out of the Campbells soup cans, and ostensibly a stamp could be made out of Warhols work without Campbells permission, right? However just taking a photo of Warhols painting and then making a stamp out of that without Warhols permission would not be transformative, even though Warhol's paintings were a somewhat straightforward representation of the soup can. Right? No?

Bullshit (2, Interesting)

smd75 (1551583) | more than 4 years ago | (#31310410)

This is just wrong.

It was commissioned by Congress. "Management of the memorial was turned over to the National Park Service, under its National Mall and Memorial Parks group. As with all National Park Service historic areas, the memorial was administratively listed on the National Register of Historic Places on the day of its dedication." (wikipedia)

I think, as the piece being commissioned by congress and the managing body by the US Park Service, the artist can go fuck himself. As an artist my self, Im possessive of my own works, but this is wrong. As a photographer, I am allowed to take someone else's work and duplicate the scene and photograph it. This is so long as I am not taking the image of their creation and claiming it to be my own. If I put the effort into it to duplicate it, and take the exact same photo, and can prove I did all that, Im in the clear. Taking a picture of a publicly commissioned art piece is my own work. Also, If I had art that was to be commissioned by congress, I wouldnt throw a hissy fit over what the government wanted to do. Theyre not even making money off it. What the hell is this guy's problem. He is known as the creator, that should be plenty enough.

I need a mail card from you! (0)

Anonymous Coward | more than 4 years ago | (#31310488)

Seriously, I really want you to write me a postcard and send over to my home.

I urge it asap.

PS: don't forget to send it with that stamp, I'm quite sure it will cost more than $1,000 each in less than a century... and I surely will need money...

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