I. Case Name and Citation: Gaylord v. United States, 595 F.3d 1364; 2010 U.S. App. LEXIS 3915 (D.C. Cir. 2010).
II. Facts of the Case: Plaintiff designed, sculpted, and holds a copyright for the Korean War Veterans Memorial’s statutes (the “Sculpturesâ€), which are located on the National Mall in Washington, D.C. Collectively, the Sculptures depict a platoon of nineteen soldiers in a military formation. A photographer also holds a derivative copyright for a photograph of fourteen of the nineteen Sculptures that was taken on a winter morning in unique lighting conditions (the “Photographâ€). In 2002, the United States Post Office (the “USPSâ€) paid the photographer $1500 to use the Photograph in a stamp commemorating the Korean War (the “Stampâ€). The USPS, however, did not seek Plaintiff’s permission to use the Photograph, which depicted his copyrighted work. The USPS received over $22 million from sales of the stamp and related merchandise.
III. Procedural Posture: Plaintiff filed a copyright infringement suit against the United States in the Court of Federal Claims. Following a trial, the court held that (1) Plaintiff is the sole copyright owner of the Sculptures, (2) the Sculptures do not qualify as an architectural work, and (3) the government is not liable for copyright infringement because its use of the Sculpture’s image is transformative and, thus, fair use. Plaintiff then appealed the fair use decision and the United States appealed the copyright ownership and architectural work decisions to the D.C. Circuit.
IV. Holding/Important Dicta: Affirmed-in-part, reversed-in-part, and remanded
1. Reversed: The court held that the USPS’s use of the Sculptures is not fair use and, accordingly, not copyright infringement.
a. Prong 1: Purpose and Character
i. The court held that the USPS’s use of the image of the Sculptures in the Stamp is not transformative and has a commercial purpose. Accordingly, the first fair use factor weighed against a finding of fair use.
ii. The lower court determined that, though the purposes of the Stamp and Sculptures are the same - to honor Korean War veterans - the Stamp adds new character and expression to the Sculptures in two ways: (1) the Photographer “transformed the three-dimensional sculpture with his photograph by creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beingsâ€; and (2) the USPS “further transformed the Sculptures by making them even grayer, creating a nearly monochromatic image,†which “enhanced the surrealistic expression ultimately seen in the Stamp by making it colder.†The D.C. Circuit, however, opined that the inquiry into transformative use must focus on the purpose and character of the Stamp, not those of the Photograph. In this case, as pointed out by the lower court, both the Stamp and the Sculpture share the same purpose. The D.C. Circuit next explained that the Stamp does not use the image of the Sculpture for either criticism or commentary. Likewise, the court explained that the Stamp does not use the image of the Sculpture as part of a larger biographical work. In conclusion, the court opined that the general characteristics of the Stamp are not transformative: “Although the stamp altered the appearance of the Sculptures by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, the Sculptures and its soldiers themselves contribute to that character. Indeed, the initial sculptors that predated the plaintiff suggested that the Memorial have a “dream-like presence of ghostly figures.†Capturing the Sculptures on a cold morning after a snowstorm - rather than on a warm sunny day - does not transform its character, meaning, or message. Nature's decision to snow cannot deprive the plaintiff of an otherwise valid right to exclude.â€
iii. Because the USPS received over $22 million in revenue from sale of the Stamp and related merchandise, the commercial nature of the Stamp was not disputed.
b. Prong 2: Nature of the Copyrighted Work
i. The D.C. Circuit agreed with the lower court that the Sculptures are expressive and creative, which weighed against a finding of fair use. The lower court, however, gave the second fair use factor little weight because it found the Photograph to be transformative. Because the D.C. Circuit held that the Photograph is not transformative, it afforded the second fair use factor more weight in its analysis.
c. Prong 3: The Amount and Substantiality of the Original Work Used in the Secondary Work
i. The court held that the quantity of the Sculptures that are depicted in the Stamp - fourteen - weighed against a finding of fair use. The court also opined that, though “the snow and muted coloring lessen the features of the soldiers†in the Stamp, the fact that the soldiers are “essentially the entire subject matter†of the Stamp weighs against fair use.
d. Prong 4: Market Impact
i. The D.C. Circuit agreed with the lower court that the fourth fair use factor weighed in favor of a finding of fair use. The D.C. Circuit noted that the Stamp does not harm the value of the Sculptures or the market for their derivative works and that the USPS “conceded that the stamp actually increased the value†of the Sculptures.
e. Overall: Weighed together, the fair use factors precluded a finding of fair use.
2. Affirmed: Plaintiff has full and sole ownership of the copyright to the Sculptures.
a. The United States claimed that it had the right to use an image of the Sculptures because (1) it had joint authorship of the Sculptures because several government entities contributed to the Sculptures and (2) the architectural firm with which it contracted to create the Sculptures, which in turn selected Plaintiff as the sculptor, was a joint author of the Sculptures and granted the United States a license to use any work for which it owns a copyright.
b. The Court rejected all three of the United States’ arguments to support its claims that it has the right to use the Sculptures.
i. Argument 1: Plaintiff was not entitled to a prima facie presumption under 17 U.S.C. § 410(c) that he was the sole author of the Sculptures because his various copyright registrations state that the works were either “fully approved†or "fully approved by all federal commissions.â€
1. The court held that “approval - much like comment and criticism - does not amount to authorship.â€
ii. Argument 2: The Court of Federal Claims failed to treat the prime facie evidence of the copyright registrations as rebuttable.
1. The D.C. Circuit held that the lower court properly weighed the United States’ evidence and concluded that the United States did not rebut the presumption of sole ownership.
iii. Argument 3: The Court of Federal Claims erred in concluding that the Sculptures were not a joint work under 17 U.S.C. § 101.
1. The D.C. Circuit found no error in the lower court’s holding. The D.C. Circuit explained that “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.†The United States’ argument failed the first prong because the government entities and the architectural firm only (1) made suggestions that Plaintiff independently transformed into his copyrightable work and (2) contributed other non-copyrightable aspects to the Sculptures. The United States’ argument failed the second prong because the evidence did not show an intention on the part of the government entities or the architectural firm to create a joint work.
3. Affirmed: The Sculptures are not an architectural work.
a. The United States argued that the Sculptures are an architectural work under the Architectural Works Copyright Protection Act, which exempts “the making of pictorial representations of architectural works from copyright infringement.â€
b. The D.C. Circuit rejected this argument and affirmed the conclusion of the lower court. 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†and 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.’†The D.C. Circuit agreed with the lower court that the Sculptures do not qualify as an architectural work because they are artistic expressions that permit observers to walk through and around them rather than allowing people to inhabit them.
4. Remanded: The case was remanded for a determination of damages.
V. Likely Future Importance or Unanswered Questions: The aspect of the case that will have the most significant impact on future cases is the holding that the Stamp is not transformative. In future fair use litigations involving photographs or collages, Gaylord will likely be cited as precedent that counters the Second Circuit’s holding in Blanch v. Koons. 467 F.3d 244 (2d Cir. 2006). The Gaylord court indirectly distinguished the two cases- it cited to the Blanch court’s determination that the secondary work at issue had a “sharply different†purpose from that of the original work and subsequently held that the Stamp and the Sculptures shared the same character. Therefore, the Gaylord holding will likely be cited to contrast claims of fair use that cite to Blanch.
VI. Critical Analysis: Though it did not state that it did so, the D.C. Circuit may have taken into account the revenue generated by the Stamp when determining whether the USPS’s use was transformative. The Court of Federal Claims evaluated the way in which the final image that appeared on the Stamp “transformed†the Sculptures. The D.C. Circuit disagreed with that analysis, focusing on the fact that both the Stamp and the Sculptures shared the same general purpose: to honor Korean War veterans. This is a case of reasonable minds disagreeing over a very subjective determination. However, it is very possible that the D.C. Circuit was sympathetic to the Plaintiff’s damages claim because the Photographer was paid $1500 by the USPS and the USPS received over $22 million in revenue from sales of the Stamp and related accessories. Accordingly, the lack of compensation to Plaintiff may have framed the mindset of the D.C. Circuit as it formed its opinion.
II. Facts of the Case: Plaintiff designed, sculpted, and holds a copyright for the Korean War Veterans Memorial’s statutes (the “Sculpturesâ€), which are located on the National Mall in Washington, D.C. Collectively, the Sculptures depict a platoon of nineteen soldiers in a military formation. A photographer also holds a derivative copyright for a photograph of fourteen of the nineteen Sculptures that was taken on a winter morning in unique lighting conditions (the “Photographâ€). In 2002, the United States Post Office (the “USPSâ€) paid the photographer $1500 to use the Photograph in a stamp commemorating the Korean War (the “Stampâ€). The USPS, however, did not seek Plaintiff’s permission to use the Photograph, which depicted his copyrighted work. The USPS received over $22 million from sales of the stamp and related merchandise.
III. Procedural Posture: Plaintiff filed a copyright infringement suit against the United States in the Court of Federal Claims. Following a trial, the court held that (1) Plaintiff is the sole copyright owner of the Sculptures, (2) the Sculptures do not qualify as an architectural work, and (3) the government is not liable for copyright infringement because its use of the Sculpture’s image is transformative and, thus, fair use. Plaintiff then appealed the fair use decision and the United States appealed the copyright ownership and architectural work decisions to the D.C. Circuit.
IV. Holding/Important Dicta: Affirmed-in-part, reversed-in-part, and remanded
1. Reversed: The court held that the USPS’s use of the Sculptures is not fair use and, accordingly, not copyright infringement.
a. Prong 1: Purpose and Character
i. The court held that the USPS’s use of the image of the Sculptures in the Stamp is not transformative and has a commercial purpose. Accordingly, the first fair use factor weighed against a finding of fair use.
ii. The lower court determined that, though the purposes of the Stamp and Sculptures are the same - to honor Korean War veterans - the Stamp adds new character and expression to the Sculptures in two ways: (1) the Photographer “transformed the three-dimensional sculpture with his photograph by creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beingsâ€; and (2) the USPS “further transformed the Sculptures by making them even grayer, creating a nearly monochromatic image,†which “enhanced the surrealistic expression ultimately seen in the Stamp by making it colder.†The D.C. Circuit, however, opined that the inquiry into transformative use must focus on the purpose and character of the Stamp, not those of the Photograph. In this case, as pointed out by the lower court, both the Stamp and the Sculpture share the same purpose. The D.C. Circuit next explained that the Stamp does not use the image of the Sculpture for either criticism or commentary. Likewise, the court explained that the Stamp does not use the image of the Sculpture as part of a larger biographical work. In conclusion, the court opined that the general characteristics of the Stamp are not transformative: “Although the stamp altered the appearance of the Sculptures by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, the Sculptures and its soldiers themselves contribute to that character. Indeed, the initial sculptors that predated the plaintiff suggested that the Memorial have a “dream-like presence of ghostly figures.†Capturing the Sculptures on a cold morning after a snowstorm - rather than on a warm sunny day - does not transform its character, meaning, or message. Nature's decision to snow cannot deprive the plaintiff of an otherwise valid right to exclude.â€
iii. Because the USPS received over $22 million in revenue from sale of the Stamp and related merchandise, the commercial nature of the Stamp was not disputed.
b. Prong 2: Nature of the Copyrighted Work
i. The D.C. Circuit agreed with the lower court that the Sculptures are expressive and creative, which weighed against a finding of fair use. The lower court, however, gave the second fair use factor little weight because it found the Photograph to be transformative. Because the D.C. Circuit held that the Photograph is not transformative, it afforded the second fair use factor more weight in its analysis.
c. Prong 3: The Amount and Substantiality of the Original Work Used in the Secondary Work
i. The court held that the quantity of the Sculptures that are depicted in the Stamp - fourteen - weighed against a finding of fair use. The court also opined that, though “the snow and muted coloring lessen the features of the soldiers†in the Stamp, the fact that the soldiers are “essentially the entire subject matter†of the Stamp weighs against fair use.
d. Prong 4: Market Impact
i. The D.C. Circuit agreed with the lower court that the fourth fair use factor weighed in favor of a finding of fair use. The D.C. Circuit noted that the Stamp does not harm the value of the Sculptures or the market for their derivative works and that the USPS “conceded that the stamp actually increased the value†of the Sculptures.
e. Overall: Weighed together, the fair use factors precluded a finding of fair use.
2. Affirmed: Plaintiff has full and sole ownership of the copyright to the Sculptures.
a. The United States claimed that it had the right to use an image of the Sculptures because (1) it had joint authorship of the Sculptures because several government entities contributed to the Sculptures and (2) the architectural firm with which it contracted to create the Sculptures, which in turn selected Plaintiff as the sculptor, was a joint author of the Sculptures and granted the United States a license to use any work for which it owns a copyright.
b. The Court rejected all three of the United States’ arguments to support its claims that it has the right to use the Sculptures.
i. Argument 1: Plaintiff was not entitled to a prima facie presumption under 17 U.S.C. § 410(c) that he was the sole author of the Sculptures because his various copyright registrations state that the works were either “fully approved†or "fully approved by all federal commissions.â€
1. The court held that “approval - much like comment and criticism - does not amount to authorship.â€
ii. Argument 2: The Court of Federal Claims failed to treat the prime facie evidence of the copyright registrations as rebuttable.
1. The D.C. Circuit held that the lower court properly weighed the United States’ evidence and concluded that the United States did not rebut the presumption of sole ownership.
iii. Argument 3: The Court of Federal Claims erred in concluding that the Sculptures were not a joint work under 17 U.S.C. § 101.
1. The D.C. Circuit found no error in the lower court’s holding. The D.C. Circuit explained that “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.†The United States’ argument failed the first prong because the government entities and the architectural firm only (1) made suggestions that Plaintiff independently transformed into his copyrightable work and (2) contributed other non-copyrightable aspects to the Sculptures. The United States’ argument failed the second prong because the evidence did not show an intention on the part of the government entities or the architectural firm to create a joint work.
3. Affirmed: The Sculptures are not an architectural work.
a. The United States argued that the Sculptures are an architectural work under the Architectural Works Copyright Protection Act, which exempts “the making of pictorial representations of architectural works from copyright infringement.â€
b. The D.C. Circuit rejected this argument and affirmed the conclusion of the lower court. 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†and 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.’†The D.C. Circuit agreed with the lower court that the Sculptures do not qualify as an architectural work because they are artistic expressions that permit observers to walk through and around them rather than allowing people to inhabit them.
4. Remanded: The case was remanded for a determination of damages.
V. Likely Future Importance or Unanswered Questions: The aspect of the case that will have the most significant impact on future cases is the holding that the Stamp is not transformative. In future fair use litigations involving photographs or collages, Gaylord will likely be cited as precedent that counters the Second Circuit’s holding in Blanch v. Koons. 467 F.3d 244 (2d Cir. 2006). The Gaylord court indirectly distinguished the two cases- it cited to the Blanch court’s determination that the secondary work at issue had a “sharply different†purpose from that of the original work and subsequently held that the Stamp and the Sculptures shared the same character. Therefore, the Gaylord holding will likely be cited to contrast claims of fair use that cite to Blanch.
VI. Critical Analysis: Though it did not state that it did so, the D.C. Circuit may have taken into account the revenue generated by the Stamp when determining whether the USPS’s use was transformative. The Court of Federal Claims evaluated the way in which the final image that appeared on the Stamp “transformed†the Sculptures. The D.C. Circuit disagreed with that analysis, focusing on the fact that both the Stamp and the Sculptures shared the same general purpose: to honor Korean War veterans. This is a case of reasonable minds disagreeing over a very subjective determination. However, it is very possible that the D.C. Circuit was sympathetic to the Plaintiff’s damages claim because the Photographer was paid $1500 by the USPS and the USPS received over $22 million in revenue from sales of the Stamp and related accessories. Accordingly, the lack of compensation to Plaintiff may have framed the mindset of the D.C. Circuit as it formed its opinion.