• A Postscript on Damages

    by  • April 27, 2011 • copyright

    Photo by Kevin Burkett. Licensed under CC-BY-SA 2.0

    Frank Gaylord was the artist who created the figures that are part of the Korean War Veterans Memorial. A photograph of the figures in the snow was used on a postage stamp.  In 2006 Frank Gaylord sued in the Court of Claims, lost, appealed, and then won in the Court of Appeals for the Federal Circuit.  The case went back to the Court of Claims on damages.

    And won a grand total of $5,000.  That’s what six years of litigation, including an appeal, got him.

    Gaylord argued he was entitled to $3 million on the theory that he should get a 10% royalty on the revenue the Postal Service received from stamp and non-stamp sales.  The theory didn’t fly with the court though; a royalty-based award is unique to patent infringement cases.  Instead, he was entitled to just compensation, based on “what the owner has lost, not what the taker has gained.”  The Postal Service is forbidden by policy from paying royalties and the most it had every paid to use a pre-existing work was $5,000.  So $5,000 it was for Mr. Gaylord.

    Gaylord v U.S., No. 06-539C (Ct. Cl. April 22, 2011).

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