US Post Office Use of Sculpture Not Fair Use

This is huge. Today, the U.S. Court of Appeals for the Federal Circuit rightly decided that the US Post Office’s use of an image, based on a copyrighted sculpture, was not fair use. As a result, the Federal Circuit’s decision holds that the US Post Office is liable to the sculptor and remands the case back to the trial court so that damages may be determined.

Some readers may remember that this decision concerns Frank Gaylord’s copyright infringement lawsuit against the United States. Gaylord filed suit with The U.S. Court of Federal Claims (the court of Federal Claims hears cases where there are monetary claims against the U.S. Government) alleging that the U.S. Post Office infringed his copyright to The Column (his Korean War Veteran’s Memorial sculpture), by not obtaining his consent to have it photographically reprinted on a postal stamp (the stamp was issued in July of 2007). The Post Office obtained the photograph from John Alli, a retired U.S. Marine Corp pilot and amateur photographer.

Readers may also remember that The Center for Internet Society (“CIS”) filed an amicus on behalf of the Andy Warhol Foundation, and several other amici, including the Warhol Museum; artists Barbara Kruger, Thomas Lawson, Jonathan Monk, and Allen Ruppersberg; and a few law professors. In the amici, the CIS unsuccessfully argued that the US Post Office’s use was fair use, “We think fair use does and should protect this right, which is crucial to huge amounts of expression, including vast amounts of modern art. ” 

It is encouraging to see the Court reach the correct decision; one which will help in the interpretation of fair use under current copyright laws in the U.S., as well as provide aritsts with the rights and compensations frequently denied to them.

You can read today’s opinion here.