Gaylord v. United States, No. 14-5020 (Fed. Cir. 2015)Annotate this Case
Gaylord, a renowned sculptor, created The Column, consisting of stainless steel statues depicting soldiers on patrol, as the center of the Korean War Veterans Memorial on the National Mall in Washington, D.C. Gaylord was paid $775,000. In 1996, an amateur photographer, Alli , visited the Memorial during a heavy snowstorm and photographed The Column. The U.S. Postal Service issued a stamp to commemorate the fiftieth anniversary of the Korean War armistice, selected Alli’s photograph of The Column for the stamp face, and paid Alli a one-time fee of $1,500. The Postal Service did not seek Gaylord’s consent, reasoning that the photograph was a “derivative work,” 17 U.S.C. 106(2). Gaylord sued for copyright infringement. The Federal Circuit held that the government was liable for infringement; that The Column was not a “joint work” (whose joint authors individually might grant permission); and that its use was not protected as fair use. On remand, the Claims Court considered: stamps used to send mail; commercial merchandise featuring an image of the stamp; and unused stamps purchased by collectors, for which the court assigned a 10% per-unit royalty, resulting in an award of $540,000 for the unused stamps, plus prejudgment interest. The Federal Circuit affirmed.