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Court Rules Photo of Memorial Violates Copyright
WhatDoIKnow sends in a story about an appeals court ruling in a singular case that might have the effect of narrowing "fair use" rights for transformative uses of artworks. "The sculptor who designed the Korean War memorial [in Washington DC] brought suit against the Postal Service after a photograph of his work was used on a postage stamp. Though first ruled protected by 'fair use,' on appeal the court ruled in favor (PDF) of the sculptor, Frank Gaylord, now 85."
from TFA:
"she went over all of the available documents and found that they expressly kept those [IP] rights with Gaylord"
So no the idiots at the Army Corps of Engineers who signed the contract for this didn't in fact get ownership of anything other than the physical sculpture.
The U.S. Court of Federal Claims is comprised of 16 judges nominated by the president and confirmed by the Senate.
Judge Thomas C Wheeler was nominated in June 05 and confirmed in October 05 for a 15 year term. His prior experience was 10 years as a lawyer for corporate law firm DLA Piper.
The underlying problem is that copyrights were improperly assigned to Gaylord in the first place. Being under contract to the govt, those copyrights should have been assigned to the govt. In fact the contracting officer has been and still is demanding that those improperly assigned copyrights be turned over. The court wasn't allowed to challenge the validity of those copyrights and had to take them at face value.
From the court decision, Mr. Gaylord was paid $775k by the United States for his part of the work, and the primary contractor (who hired Mr. Gaylord directly) was paid over $5M (p. 5 of dissent).
Personally, I'm rather confused as to how this case turned out this way. The dissent offers a very strong argument for why the government already has a license to use the artwork however it sees fit, and it also notes a federal law which should disqualify a claim against the government in this case. The US should at least try to get the CAFC to hear this case en banc, because it seems that the majority in this case overlooked some important details.
That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion).
No, it's a minimum award of $750 and a maximum of $30,000, assuming no willful infringement.
Statutory damages are per work, not per copy.
Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?
Complete non-sequitur. Is a $30,000 penalty for a corporation misusing someone else's property too high? Of course not. Is the same penalty too high for a kid who is pirating music for his iPod? Almost certainly.
Fair use is determined by the four factor test and that list is not exhaustive, for example "timeshifting" which was vital to the Betamax case is not listed nor covered by any of the others. So the only one bastardizing the statutes here is you, by asserting that it can't be fair use since it's not on the list.
Live today, because you never know what tomorrow brings
I don't think you understand copyright law. A finding of fair use requires that the derivative work survive the "four factor test". Mere inclusion in the category of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is neither neccessary nor sufficient for a finding of "fair use".
The task is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).
USPS WAS operating in the green actually for most of the decade, up til 2007 when the increased gas prices really started to impact the bottom line. When you operate the largest vehicle fleet in the world, even a penny increase is going to be massively damaging..
http://www.usps.com/history/anrpt07/summary.htm
So yeah, it's fun to mock USPS, but it's not often warranted.
Appeals court rulings are overturned frequently by supreme courts (google it) - if they hear the case (which the blatantly should). US postal service should be able to get there. I'm not worried but then again I'm not in the US. Why are there so many cases where there is a reversal is strange and can be infuriating.
Especially as the decision was 2 - 1 with a strong and well agued dissent.
Why are there so many cases where there is a reversal
To a great extent it's because Federal appeals court judges are political appointees, more often than not chosen because of their partisan politics rather than any sort of legal knowledge. No experience as a lower-court judge is necessary, for that matter a number of them have been appointed after spending all of their post-Bar Exam years lobbying or politicking rather than practicing law.
"Think about how stupid the average person is. Now, realise that half of them are dumber than that." - George Carlin