• It Should Be In the Public Domain

    by  • February 28, 2010 • copyright

    Artist Frank Gaylord created the bronze figures that are part of the Korean War Veterans Memorial.  He sued the U.S. Postal Service when a photo of the sculptures was used on a stamp. In take one, the Court of Claims split the baby, deciding that the photo was a fair use of the sculpture, but also found that the government was not joint owner of the sculptures.  Now on take two, the Court of Appeals for the Federal Circuit gives Gaylord the full win – it affirmed on the ownership issue, reversed on the fair use defense, and sent the case back to the Court of Claims for a determination of damages.  The unanswered question is how it can be that the copyright in a war memorial isn’t in the public domain.

    As a refresher, Cooper-Lecky Architects, P.C. was selected to create, build and install the Korean War Veterans Memorial.  The Memorial includes 19 statues of soldiers, a mural, granite plates at the soldiers’ feet representing the reflection of rice paddies, and landscaping.  Cooper-Lecky sponsored a competition to select the sculptor for the human figures and plaintiff Gaylord won the competition.

    Photo by clkohan.

    A photographer, Alli, then took a photo of the statues in the snow.  The U.S. Postal Service later used the photo, with Alli’s permission, on a stamp.

    Gaylord sued the US Postal Service in the U.S. Court of Claims.

    On fair use, the Court of Claims had bootstrapped a questionable analysis on the first fair use factor into a successful fair use defense overall, but the Federal Circuit was not so gullible (a reversal that isn’t so popular, but I leave it to others to argue what “fair use” really means).

    The Government’s argument that it was joint owner of the work was still futile. The Court of Appeals agreed with the Court of Claims that the government’s contributions to the statues – changes in ethnicity, altering soldiers so they were clean-shaven, adding buckled chin-straps, putting ponchos on the soldiers, reducing the wind in the ponchos, removing wrinkles on the solders’ faces, changing the position of the lead soldier from squatting to standing, and staggering the placement of the statues in formation – were just “suggestion and criticism,” not joint ownership. But even if these suggestions had risen to the level of copyrightable contribution, joint ownership requires an intent to create a joint work.  Gaylord and Cooper-Lecky had disagreed about ownership long before the statues were completed, so clearly Gaylord did not intend that anyone have joint ownership in the copyright.

    But the real meat of the case is in the dissent.  As some have recognized, how can it be that a private person owns the copyright in a public monument?  Judge Newman points out in dissent that the majority’s holding “is contrary to the contract provisions, contrary to statute for works done in the service of the United States, contrary to copyright law, and contrary to national policy governing access to public monuments.”

    The dissent and commenters are right to be outraged; Cooper-Lecky’s contract said that “the Government shall have unlimited rights, in all drawings, designs, specifications, notes and other works developed in the performance of this contract, including the right to use same on any other Government design or construction without additional compensation to the Contractor.  The contractor hereby grants to the Government a paid-up license throughout the world to all such works to which he may assert or establish any claim under design patent or copyright laws . . . .”  Here is a 2000 letter to Cooper-Lecky from a government contracting officer stating in no uncertain terms that, in the government’s opinion, it owns all copyrights in the work and demanding the assignment to the government:

    and

    The letter shows that Cooper-Lecky repeatedly claimed that it was the owner of the copyright in the work and required permission for others to reproduce it.  The government threatened to take action if there was no assignment, but must not have done so.

    The majority disposes of the dissent by pointing out that the issue wasn’t raised by either party but only by the dissent sua sponte, and, further, Gaylord was not a party to the contract.  Indeed, the contract language arguably doesn’t require Cooper-Lecky to assign any copyright but only give a license to its own, not those of subcontractors, with a grant only to the government, not to third parties.  But perhaps now the government will see fit to enforce the contract against Cooper-Lecky and put the ownership of the work where it belongs, with the government, and then the government can dedicate it to the public domain.

    Gaylord v. U.S.
    , No. 2009-5044 (Fed. Cir. Feb. 25, 2010).

    Court of Claims decision here.

    Creative Commons License
    This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.