RIGHTS IN SCULPTURAL WORKS
Ivan Hoffman, B.A., J.D.
The case of Gaylord vs. United States, 595 F.3d 1364 (Fed. Cir. 2010), has had numerous incarnations but the aspect of the case that is the subject of this article presents the foundational issues. The later versions involve the calculation of damages.
Here is the short summary of the facts as described by the Court.
This case arises from the Postal Service's decision to issue a 37-cent stamp depicting a portion of the Memorial [A Korean War Veterans’ Memorial]. The path from the concept of the Memorial to the creation of the stamp spans more than 15 years.
In 1986, Congress enacted legislation to erect a memorial in Washington, D.C. to honor veterans of the Korean War. Authorization of Memorial, Pub.L. No. 99-572, § 1,100 Stat. 3226 (1986). The legislation authorized the American Battle Monuments Commission (Commission) to establish the Memorial, and the Commission sponsored a contest to select the designer of the Memorial. A team from the Pennsylvania State University (the Penn State Team) won the contest with a proposal to create 38 larger-than-life granite soldiers in formation. According to the Penn State Team, "[f]rom a distance, one [would see] the Memorial as an elusive, dream-like presence of ghostly figures moving across a remote landscape." Although its original concept undoubtedly influenced the design of the Memorial, the Penn State Team eventually withdrew from the project. [Penn State was not involved in this litigation]
The Army Corps of Engineers selected Cooper-Lecky Architects, P.C. (Cooper-Lecky) as the prime contractor for the creation, construction, and installation of the Memorial. Cooper-Lecky sponsored a competition to select the sculptor for the Memorial. Mr. Gaylord, a nationally recognized sculptor, won the contest.
In 1990, Mr. Gaylord began work on the project. Although the Penn State Team's proposal called for 38 granite soldiers, "the final design featured 19 stainless steel statues representing a platoon of foot soldiers in formation," referred to as The Column. Gaylord, 85 Fed.Cl. at 63. Mr. Gaylord prepared successively larger models of the soldiers, transforming them … along the way in response to critiques and suggestions by Cooper-Lecky, members of the Korean War Veterans Memorial Advisory Board (VAB), and the Commission on Fine Arts (CFA). Once Mr. Gaylord completed models for the soldiers, they were cast in stainless steel and installed at the site of the Memorial on the National Mall in Washington, D.C. At the suggestion of a member of the VAB, Mr. Gaylord staggered the statues, thereby creating the composition of The Column. Cooper-Lecky, the VAB, and the CFA all participated in incorporating The Column into the Memorial, which also includes landscaping, a mural, and granite plates representing the reflection of rice paddies at the soldiers' feet. A picture of The Column — taken on a sunny day — is below.
Mr. Gaylord received five copyright registrations relating to the soldier sculptures from 1990 to 1995. Each certificate listed Mr. Gaylord as the sole author. The registrations include pictures of the clay models for the sculptures as they evolved over the years, and eventually, the sculptures themselves. For example, in his November 11, 1993 registration, he described the work as clay "statuettes — fully approved — 19 soldiers — National Korean War Veterans Memorial." His August 12, 1994 registration concerned "19 7-6 tall clay soldiers to be cast in stainless steel for the National Korean War Veterans Memorial on the mall in Washington, D.C." Shortly after the statues were installed, on May 1, 1995, Mr. Gaylord filed a certificate of copyright registration for the soldiers as they appeared before and after casting. This certificate included photographs of the soldiers as installed on the National Mall.
In 1995, shortly after the Memorial was dedicated, a photographer named John Alli took a photograph of the Memorial as a retirement gift for his father, a veteran of the Korean War. Mr. Alli visited the Memorial on five or six occasions, taking photographs at various times of year and day. One such visit occurred in January 1996 just after a snowstorm. Over the course … of about two hours on that cold winter morning, Mr. Alli took about 100 photographs of the Memorial, including photographs of individual soldiers, from various angles using different exposures and lighting conditions. Mr. Alli selected one of his photographs for his father's retirement gift. The photograph, titled "Real Life," is reproduced below. No one questions that Mr. Alli is entitled to his own copyright protection in his photograph as a derivative work.
Mr. Alli decided to sell prints of the photograph. He therefore sought permission from the copyright owner of the underlying work, eventually locating Mr. Lecky of Cooper-Lecky, who held himself out as the "outright" owner of the copyright. Mr. Alli agreed to pay a 10% royalty on sales of prints of his photographs to a licensing entity established by Mr. Lecky. Mr. Lecky did not notify Mr. Gaylord about the agreement with Mr. Alli.
In 2002, the Postal Service decided to issue a 37-cent stamp commemorating the 50th anniversary of the armistice of the Korean War. The Postal Service selected Mr. Alli's photograph for the stamp and paid him $1500 for its use. Mr. Alli told the Postal Service that it would need the permission of the owner of the copyright of the underlying work and referred the Postal Service to Mr. Lecky.
he Postal Service issued the stamp, titled "Korean War Veterans Memorial." The stamp features Mr. Alli's photo and depicts 14 of the 19 soldier sculptures (see below).
Mr. Gaylord sued the United States government for copyright infringement claiming the government had not obtained permission to use a depiction of his sculpture on the stamps. The government raised several defenses:
1. They said the use was a “fair use.”
2. They said that the government was a “joint author” of the sculpture.
3. They said that the work was an “architectural work” and thus was entitled to limited copyright protection.
For those of you who have read many of my articles, you probably know that the “fair use” defense is so riddled with uncertainty that there is probably no one on the face of the planet who can tell you, in advance, whether anything is going to be held to be “fair use.” Read the many articles on this topic under the link “Articles for Writers and Publishers.” If you have to resort to this defense, it means you have already been sued and being sued is something to be avoided.
The Court reviewed the many factors and cases dealing with “fair use” and concluded that the government did not make “fair use” of the sculpture. Among the reasons for the Court’s finding was that the Court held that the use of the sculpture on the stamp was not “transformative.”
The stamp does not reflect any "further purpose" than The Column. See Campbell, 510 U.S. at 579, 114 S.Ct. 1164. As the Court of Federal Claims found, both the stamp and The Column share a common purpose: to honor veterans of the Korean War.
As to the defense of “joint authorship,” the government’s position was that the architectural firm, Cooper-Lecky, was a joint author along with Mr. Gaylord and as such, Cooper-Lecky was entitled to issue a license to the government. Joint authors are each entitled to exploit a copyrighted work, subject to the obligation to account to the other joint author (or authors) for the income therefrom according to the percentages of ownership (which latter issue presents still further ambiguity since without a written agreement, that percentage is also likely to be the subject to dispute).
Joint authorship requires "an original work of authorship" from each author. CCNV, 846 F.2d at 1495. "To be an author, one must supply more than mere direction or ideas: one must `translate  an idea into a fixed, tangible expression entitled to copyright protection.'" S.O.S., 886 F.2d at 1087 (quoting CCNV, 490 U.S. at 737, 109 S.Ct. 2166); see also PODS, 484 F.3d at 1370 ("Mere participation in, contributions to, and review of the work of [another person] would not necessarily create a joint work."). As a general rule, each joint author must make an independently copyrightable contribution to the work.4 See Aalmuhammed v. Lee,202 F.3d 1227, 1234 (9th Cir. 1999); Thomson v. Larson,147 F.3d 195, 200 (2d Cir. 1998); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071 (7th Cir. 1994); M.G.B. Homes, Inc. v. Ameron Homes, Inc.,903 F.2d 1486, 1493 (11th Cir. 1990). Thus, "[a] co-authorship claimant bears the burden of establishing that each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors." Thomson, 147 F.3d at 200.
If one commissioned a work for a cowboy riding a horse, that contribution would not constitute copyrightable expression. See 17 U.S.C. § 102(b) (no copyright protection for ideas). If one later instructed the artist to depict the cowboy as weathered, wearing a cowboy hat, and riding slowly in calm wind, that would not rise to the level of copyrightable expression. See S.O.S., 886 F.2d at 1087 ("A person who merely describes to an author what the commissioned work should do or look like is not a joint author for purposes of the Copyright Act.").
As to this issue, the Court ruled that because Mr. Gaylord had registered several copyrights in the sculpture, those registrations were entitled to the presumption of validity. (read “Do I Need to Register My Copyrights?” )
17 U.S.C. § 410(c) ("In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.").
The registrations clearly indicated that Mr. Gaylord was the sole author of the sculpture. Any part of the Memorial that was created and contributed by the architectural firm was not part of the stamp and Mr. Gaylord’s copyright did not include such parts. The Court referred to 2 agreements entered into by Mr. Gaylord and the architectural firm. In the so-called “1995” agreement, it stated:
The 1995 agreement, like the 1994 agreement, recognizes that Mr. Gaylord "is the sole author of the soldier sculptures to become part of the overall Memorial." The government asserts that the 1995 agreement cannot dispose of the authorship dispute because it arose after Mr. Gaylord created the final full-sized soldiers, and copyright ownership vests at the moment the work is fixed in any tangible form. Although it arose after the creation of the statues in their final form, the 1995 agreement reflects the understandings of Cooper-Lecky and Mr. Gaylord with respect to authorship of The Column and ownership of its copyright. The 1995 agreement crystallizes the intentions of the parties, which are manifest from the 1994 agreement and actions of the parties preceding the creation of The Column. We see no clear error in the Court of Federal Claims' determination that the parties never intended The Column to be a joint work.
Therefore, the architectural firm was not a joint author and the license to the government that it issued did not apply to Mr. Gaylord’s creation of The Column.
The government argued that The Column was an “architectural” work within the meaning of section 120 of the Copyright Act which provides that an architectural work copyright does not include any right to prohibit the taking of photographs taken from a public place.
The Court stated:
The Copyright Act defines an architectural work as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings."17 U.S.C. § 101. The applicable regulation defines buildings as "humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions." 37 C.F.R. § 202.11(b)(2). The definition excludes "[s]tructures other than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats." Id. § 202.11(d)(1).
The Court of Federal Claims found that The Column is not a building, and therefore it is not an architectural work governed by the AWCPA. The court explained that the work "is an artistic expression intended to convey a message rather than to be occupied by individuals. . . . Much like a walkway or a bridge, the memorial permits individuals to access through it, but is not intended for occupancy." Gaylord, 85 Fed.Cl. at 72. We see no clear error in the court's determination that The Column is not an architectural work under the AWCPA.
Additional Potential Rights in Sculptures
There are additional rights that potentially apply to sculptures which were not involved with this case and thus were not discussed therein or in this article. These involve both federal (Visual Artists Rights Act) and California (and perhaps other states’ laws). In regard to the California statute under Civil Code section 986, this was found to be unconstitutional by a district court and is now on appeal. Read about these and other issues on my site under the link “Articles for Artists.”
Copyright © 2015 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States law. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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