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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."
http://cloudking.com/artists/heather-stanfield/works/korean-war-memorial_large.jpg
It's okay to take a photo of a sculpture but it's not okay to use that photo to market your service, such as the way the USPS was trying to do with this stamp. This is part of the reason they make sure people are dead for a good long time before they honor them with a postage stamp.
Notice in my original post, I never lambasted the judge... just the idea that a war memorial, in a public place, commissioned by the public (er... gov't in this case, but isn't that supposed to be the same here?)
Given those circumstances... shouldn't it be a reasonable assumption that the rights for the memorial also be placed in the public trust?
I agree... Bad contract from the start that let this slip through.
Call me crazy, but wasn't the sculpture created from a photo? Hmmmm...
I don't get it. A post is marked "Interesting" for asking a question that is already covered IN DETAIL in TFA!
You must be new here.
My other first post is car post.
IANAL, but I can see where fair use would be an appealing technique here, but the public trust might actually be the right way to argue this one. The argument to make would be that whoever signed the contract, and perhaps even the Congress, does not have the power to grant the artist a copyright good against the public in a case where, as in a monument, the work is commissioned for display at the seat of the federal government and for the public good. The monument is something created for and held in the public trust and as such, control over its use cannot be restricted to a single individual or corporation.
The idea of the public trust overriding corporate ownership came up about a hundred years ago when a Railroad Company was arguing an older (1869, IIRC) act of the (corrupt) Illinois legislature had successfully given the railroad company title to a square mile of the lakebed of Lake Michigan. The court held that if the title had been valid, it certainly didn't survive a repeal of the original act, and in any event the State couldn't really give up control of its harbor to a private entity because that would violate the public trust.
The environmental law folks pulled the public trust doctrine out of a drawer about 40 years ago, now, and it might have been useful here.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
Actually, one of the reasons there are so many reversals for fair use is that fair use is a mixed matter of fact and law, the lower court's holding is open to full review. Compared to the other standards of review, along with the subjective nature of fair use, this will result in more reversals.