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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."
he's more obnoxious than a Reserved Gaylord.
Silly me... I thought the point of a memorial was for it to be placed in the trust of (or outright given to) the public... That being the case, how does this decision affect other images of public art?
Knock down his statue, break it into a million pieces, and send them all to his house using the infringing stamps.
http://cloudking.com/artists/heather-stanfield/works/korean-war-memorial_large.jpg
Is this one of those... monumental rulings?
Yeah I don't get it, when somebody comissions an artwork, don't they therefore own the artwork? In this case that would be all of us.
Silly me... I thought the point of a memorial was for it to be placed in the trust of (or outright given to) the public... That being the case, how does this decision affect other images of public art?
Scary, or perhaps stupid, or even ridiculous. This was commissioned by Congress and occupies space in a public park. It belongs to the United States, so we should be able to use images of it just as we do with the other public buildings and monuments we own. It is a beautiful monument to those who risked and gave their lives for us. If some blowhard "artist" wants to retain all image rights to his work, then he should keep a piece for himself, not expect us to build a setting for it and maintain it. Plenty of artists could have created something as significant without being assholes about it.
This is a hacked account, for which the owner can not be held responsible.
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.
FTA - noone actually ever paid the artist for the work, and I assume it wasn't stipulated in the rules of the competition (that the artist won) that the work, and any IP related to the work, would become public domain if he won.
Looks like a stupid oversight on behalf of the original organisers and the Postal Service for not enquiring about ownership.
Due diligence on the part of the Postal Service wouldn't have gone astray either.
I'm not sure where the outrage is coming from...
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.
Fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
17 U.S.C. 107
This is the law. This is not how the Postal Service used his copyrighted work. As an aside, this is also not what Tenenbaum et al. did when they downloaded music.
We shouldn't complain when judges use restraint and don't bastardize statutes.
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.
They own the piece of art. They don't own the work. For example, if you buy one of two hundred prints of an artist's latest painting, you just own a print, but the artist retains ownership of the IP (the painting) and all copies (the print). You wouldn't be able to just photocopy (or, according to this court ruling, photograph) and distribute the copies freely. One of the best -- and most annoying -- examples is wedding photos, which the photographer usually retains rights to, even if he sells you prints.
The same is true even if you're sold original works, not copies (such as books, replica painting) or even a singular work (the only existing sculpture, like in this case). This is why copyrights are supposed to expire: eventually, all art should belong to mankind as a whole as part of our common culture. The founding fathers never intended for anyone to be able sit on his laurels and live off a single work for his entire life, much less for three generations of his estate to benefit after his death.
As has already been noted, the interpretation of a picture of a monument as a derivative work subject to protection under copy right is harsh narrowing of fair use rights. While non-profit "reproductions" (say, vacation photos in front of the memorial) would probably still be considered fair use, it gives IP owners with a litigious mindset a very big stick.
Call me crazy, but wasn't the sculpture created from a photo? Hmmmm...
And shouldn't any photos of the memorial be under the copyright of whoever takes the picture? For example, although the design for, say an iPhone may be under copyright, I can still take a picture of it and Apple isn't going to claim copyright of it. Now, if I took a press shot of it, they might have a case, but an individual picture? No, they aren't going to do anything.
Taxation is legalized theft, no more, no less.
17 million sales of $.37 stamps = 46 million or so stamps actually produced.
Statutory damages can run from $750-$30,000 per copy, assuming that it wasn't a willful infringement.
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). Plus attorney's fees, of course. Roughly last year's federal deficit not counting off-budget spending bills.
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?
The people who approved this contract ought to be drawn and quartered. Not only did the guy get paid royally for his work, he gets to keep the IP without actually contributing anything to its maintenance. I couldn't find anything about how much the upkeep is, but it seems to me that if the guy wants to keep control over his work, he ought to maintain it himself, along with the park in which it stands. If he doesn't want to do that, he clearly is not interested in keeping control of it.
Those who can, do. Those who can't, sue.
This is nothing more than a huge slap in the face to all American veterans, of any conflict.
My grandfather was in Korea, and he made what's perhaps the most ultimate sacrifice short of his life: his genitals. Thankfully, he had three kids by the time he was sent over, one of them being my mother. But it still apparently left him a very changed man, more so than most veterans.
I am glad that he is no longer around, to spare him from having to hear of this disgraceful ruling. Many of his friends' names were on that monument.
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.
Setting precedents opens the door to business opportunities. Just put a sign or whatever near very public and photographed places, and sue any publication that from now on include photos of those places because they are sharing your sign too. Even a grafitti could eventually do the work.
I think it's more about whether you're making profit from the picture, and what about the image - precisely - you are monetizing.
If you sold your photo to a magazine for an iPhone-related article, you're in the clear because you are illustrating an existing product, and the value of the image lies in the skilful portrayal of the object in question.
If you sold the photo to Chinese bootleg manufacturers so they can replicate the UI, or started making money off your revolutionary new idea, which you call the "CoolPhone", and sending that photo to people as the appearance of an "early prototype CoolPhone", then you are likely infringing because you bring nothing to the table yourself, but rather are making money off of Apple's copyrighted product design.
Scary, or perhaps stupid, or even ridiculous. This was commissioned by Congress and occupies space in a public park. It belongs to the United States, so we should be able to use images of it just as we do with the other public buildings and monuments we own.
And the Corps of Engineers should be able to take the damn thing to a safe place and blow it up. I'd rather see it destroyed than stand in mockery of the men it commemorates.
Dewey, what part of this looks like authorities should be involved?
The monument itself is based on a famous photo. The postal service should have bypassed the monument new artwork for the stamp based on the photo.
Did the sculpter pay royalties to Joe Rosenthal the photographer? Or to the AP, which employed him? If not, this is the height of hypocracy.
When a society ceases to produce real property, the value of intangible property virtually soars. Even our money is no longer tangible, as vastly larger sums flow through wires than through hands. Someday, free speech will not be, as the government will see it as the last bastion of tax revenues.
You can't make a copy in the same medium (photo of photo), but to say that a photo of a statue is a violation of copyright is plain stupid.
It's hardly the first time copyright law has been called stupid.
I read the decision as a straightforward and reasonable interpretation of fair use. It may clarify some points, but I don't see that it narrows fair use.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
This is just wrong.
It was commissioned by Congress. "Management of the memorial was turned over to the National Park Service, under its National Mall and Memorial Parks group. As with all National Park Service historic areas, the memorial was administratively listed on the National Register of Historic Places on the day of its dedication." (wikipedia)
I think, as the piece being commissioned by congress and the managing body by the US Park Service, the artist can go fuck himself. As an artist my self, Im possessive of my own works, but this is wrong. As a photographer, I am allowed to take someone else's work and duplicate the scene and photograph it. This is so long as I am not taking the image of their creation and claiming it to be my own. If I put the effort into it to duplicate it, and take the exact same photo, and can prove I did all that, Im in the clear. Taking a picture of a publicly commissioned art piece is my own work. Also, If I had art that was to be commissioned by congress, I wouldnt throw a hissy fit over what the government wanted to do. Theyre not even making money off it. What the hell is this guy's problem. He is known as the creator, that should be plenty enough.
Im a troll because I disagree with you.
The issue at hand is the use of the specific picture in a postage stamp. The postal service could have gotten around this issue by taking another picture at a similar/same angle using their own cameras in the snow. However, they did not seek proper usage for the underlying image on which the stamps are based.
Not all stuff done by the government is in the public domain - such as work by contractors, and other works where the government pays for services. In those cases, you have to especially careful to look into rights and ownership.
Public domain images may be public domain, but often times additional rights restrictions do exist based on their source. See, some NASA images.
This is the US Post Office we're talking about here, so we don't have to worry about any profits being made...
-William Brendel
Fair use is probably a legal defense especially when no money is involved. If you took a picture of an iPhone for a news story, that's fair use as it serves a legitimate purpose. If you used it to make a poster that you sell, that's not fair use. Ever wonder why movies have to get approval for products to be shown? Same reason. In fact if you look at the photo of the iPhone on wikipedia it tells you why it is covered under fair use.
Well, there's spam egg sausage and spam, that's not got much spam in it.
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!
That would only be a point if he actually protested people simply photographing the memorial. This is about the creation of derivative works for commercial purposes.
What you're saying is that if a rock band does a free concert in a public park, they have given away the rights to their work. That's Slashbot thinking: the philosophy of consumers who never produce anything worth more than a +5, "interesting".
How about all of the Korean vets sue Frank Gaylord for intruding on their IP. After all, they FOUGHT the war.
The USPS is actually one of the few government agencies actually authorized by the US Consititution itself.
Of course! That way they can have their cake and eat it too.
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.
Wouldn't this mean then that I can copyright myself, and sue anyone that takes a picture of me?
If it won't boot, Fsck it!
Wow you think it's stupid for someone who hand crafts a complete 3d model to own the rights? Like if I sculpt the David sculpture you take photos then sell them you think you deserve that cash? Bullshit. Your photos would be nothing without the work of another artist who did ALL the work. You just show up with a camera, make sure there is light and press some goddamn buttons(maybe rotate a toggle or two or rest it on a tripod). You think that counts as work? In reality the photographer is making a fixed 2d view of MY work. A true public monument is different due to it's commissioning by the public. Also, if you can plainly see it from public property then you can sell the shot as a view of the street, but crop out the street and show only private property, then it gets dicey.
Unfortunately, it depends on the contract between the artist and the commissioner. It is becoming more and more common for the artist to retain the copyright. When an artist paints a picture and sells it, they often now explicitly put in the bill of sale that the copyright is not transferred, allowing them to sell prints of the painting even after they have sold the painting.
In another discussion group, we were discussing the incidents surrounding the Mackie dance sculptures on Broadway St. in Seattle. These are Dance Step diagrams in Bronze embedded in the sidewalk. Ten years ago a commercial photographer named Mike Hipple took a picture of someone dancing. A portion of one of the sculptures is visible in the photo. Mackie is suing for $60,000. Mackie has actually sued about photographs of these sculptures at least 30 times. As a result there have been some calls to reevaluate how public works of art are commissioned.
Unfortunately, transferring the copyright to the purchasing body (city, country, whatever) is not necessarily the answer. As shown by the Sept 11 incident with the I love new york logo. Milton Glasner created a modified version of the logo and was contacted by New Yorks legal department over infringement. The city backed down in the face of public opinion. Given that all cities/states/countries are feeling financial pressure, they will most likely want to grab licensing fees for any monuments that they own. The only solution may be an explicit grant to the public domain, but this may not be possible in practice, since everyone seem to want a cut of the action.
Atlas stands on the earth and carries the celestial sphere on his shoulders.
"One of the best -- and most annoying -- examples is wedding photos, which the photographer usually retains rights to, even if he sells you prints."
As long as you surrender your rights as a consumer it's no wonder others will abuse of that.
I married two years ago and I made damn clear I was contracting a service and that all byproducts and associated rights from that service were my own. There were two phographers that didn't see it that way... well, they didn't get neither the copyright nor the money for the service.
"Of course you don't have the rights to copy her work. Otherwise you could go into business competing against her"
Of course we all know how bad competition is... those bastard capitalists!
"Even so, it's insane."
What it is insane is people *allowing* for that.
"One of the worst is the photographer who did my sister's wedding in 1999, where she and her fiance signed a photographer on who not only expressly stated the above (quite normal)"
That's the problem. The proper answer is laugh at his face, go out the door and find another photographer.
Why don't we comission a new Korean War Memorial sculpture, smash Mr. Gaylord's sculpture to bits and then mail him the pieces?
If I recall correctly, this has been applied to other things, and the decisions have gone both ways.
Not to drag a cars into this, but... :) If I recall correctly, the "Black Mustang Club" (BMC) wanted to publish a calendar of their members vehicles. Ford objected, and stopped the printings, through legal muscle. It made the press, and Ford softened their stance to be "You can't use the Ford logo".
If there's a buck to be made, someone will try to make it.
A judgment like this is extremely dangerous. Pretty much it leaves us at the point of anything that has been produced cannot be used in any reproduction which can make money.
If I take a photo of say the city lights of New York, and I have it printed as a calendar, poster, or postcard, I would then be liable to the City of New York, the owners of every building included, the manufacturers of the lights used, and countless others. It may seem silly, but that's the case here. I know buildings, to some degree, are exempt from this, but I believe there was a story a few years ago of someone photographing the Sears Tower, and they were forbidden from doing it because they didn't have permission of the building owners for reproduction rights.
I have some very interesting photos of places I've been. Maybe someday after I kick the bucket, one of my descendants will arrange them into a nice book, "Life In The Eyes Of JWSmythe". With a decision like this, owners of anything I've taken pictures of could come back looking for their cut. Luckily, I'll be rolling over in my grave at that point. :)
Serious? Seriousness is well above my pay grade.
I think you're confusing product placement with copyright and approved uses.
You see very obvious brand names in movies and TV because they are sponsoring the movie. It's advantageous for them to have their products shown.
Don't think every couch, lamp, and article of clothing had a royalty paid for it's use. You could extend that idea to "character A walks through a door. He hangs his jacket on a hook." Consider every element in that shot. The clothes, the door, the carpet he was standing on, the hook. None of those manufacturers made any money except for the retail cost of their product.
If you see an iPhone in a movie, it's because Apple paid for it to be there. Otherwise, it would be a nondescript phone, probably held to the actors off-camera ear, or not even shown in an obvious manner other than the fact you knew the actor was talking on a cell phone.
But, sure as hell, some lawyer will grab onto a case, and make some money at it (one way or another). That's part of the American dream though. Sue someone with money, and win a fortune. I'm just happy I'm not one of them.
Serious? Seriousness is well above my pay grade.
The US Govt should decide that he can have it back; and mail it to him.
Actually, unlike your rock concert which is covered by copyright, this is a very gray legal area.
Aside from work for hire issues as to whether he has the right to the copyright or not(which the judge seems to have argued he does). Public landmarks are more than a little bit fuzzy when it comes to copyright. How much of the value of the memorial is in the sculpture itself and how much of it is in what it represents to people. How much of the stamp is about the actual sculpture and how much of it is about what the sculpture represents.
I would argue that that sculpture represents the lives of thousands of American soldiers in Korea and perhaps more broadly the millions of soldiers who have fought died on all sides in conflicts throughout history. It is important and famous not because of what this guy did with a chisel, but because of what a lot of men and women did either because of what they believed in, or because they had no choice.
That postage stamp, like the memorial, is to commemorate those people, and Mr Gaylord, no matter how great an artist he may or may not be, owns nothing of that.
It wasn't the U.S. federal government who paid the start-up expenses for the USPS in this case.... it was the British government instead, when Benjamin Franklin became the first American postmaster-general in North America.
Otherwise, it has been a make a little lose a little proposition for the past nearly 300 years, and one of the early forms of revenue for the American Republic after the revolution of the 18th Century.
I'd say that those start-up costs have been amortized quite some time ago. How many 18th Century organizations are you familiar with that are still operational today?
"What about the rights of the person who created the ART of your event?"
They were properly covered by the money I got him in exchange for his services.
"They're also going to have a piss-poor eye, and will likely be late and unprofessional when it comes to delivering the images."
You are using the future tense. I remember you this was two years ago, the one I contracted had a good eye, was professional and came in time. I of course took my references.
"If you treat an artist like they're a tradesman, perhaps you don't really understand the scope of the service"
I fully understand the scope of the *service* and, yes, a wedding photographer is a tradesman no less than a lawyer or a milkman, I hired him for a service and as long as he is under contract the result of his work is my own. Maybe the photographer I hired is more professional than what you think since he had no problem understanding what I was hiring him for, professionally reaching a deal and professionally binding by it.
If you treat an artist like they're a tradesman,perhaps you don't really understand the scope of the service
You're right, we're treating them entirely too well. They do about a tenth the actual work of a tradesman, they should also be making about a tenth the actual pay.
Seriously though, your attitude is precisely the attitude that has made IP as fucked up as it is today. The wedding photographer, if he does good work, will make damn good money photographing the wedding. Everything they do is a la carte. Want another photo touched up? That's another hundred bucks. Why the FUCK do they deserve to have a "right" that entitles them to keep making money off the "work" they already got paid for, any more than any other type of worker? They spent a whopping half a day (maybe less) taking the photos, and maybe another day or two editing them, developing them, etc. They probably got paid anywhere from $3,000 to $20,000 for less than a week's worth of work. And yet, they should have a right to make more off the same work? Bullshit.
There is no -1 Disagree mod. Slashdot.org/faq defines mod options. USE IT.
The torrent-sucking copyright-is-evil gallery ought to try to make a living from IP once or twice before going off sounding like pitchfork-waving mindless rabble.
No, you've got it backwards. The self-righteous elitist "artists" ought to try to make a living from honest work once or twice before going off sounding like pompous assholes wanting a continuous revenue stream for a pittance of "work". There's already too many lazy assholes trying to make a quick buck for doing practically nothing, in the name of "IP". In the real world, if your work don't cut it, neither does your paycheck.
There is no -1 Disagree mod. Slashdot.org/faq defines mod options. USE IT.
Clearly you have *no* idea what is involved being a photographer of an event (wedding or not).
I don't even remotely understand your complaint.
The original poster found a photographer who was willing to perform the service being requested in exchange for the amount of money being offered. Nobody's work was stolen. Nobody's copyright was violated. Nobody was forced to work against his or her will. The poster didn't ask the photographer to perform 9 days of work in exchange for 2 days of pay, as you seem to imply. There was nothing illegal about the transaction. A basic requirement of a free market system is that such transactions between two willing parties must be allowed to proceed.
Why, exactly, are you upset by the notion of a willing customer and a willing vendor entering into a mutually agreeable business transaction?
I can only imagine one reason why you would be upset, and it reflects poorly on you. The only reason why you would oppose other photographers who freely offer these kinds of services would be if they are depriving you of business. However, since they are winning against you by fair competition rather than stealing or breaking the law, I would suggest you either adjust your business model or find another line of work. Whining about competitors because they offer a better service at a lower price, or even (as you argue) a worse service at a lower price, is pretty much the last thing that will gain you any sympathy around here.
The whole essence of free market capitalism is that suppliers must be free to offer varying levels and combinations of goods and services at varying levels of prices, and consumers must be free to choose among the suppliers.
Well, it wasn't a work for hire. The artists still owns all the rights. If the US government wanted it differently, they should have written the contract with the artist to reflect that. The US taxpayers may own the memorial, but not the rights to reproduce the image for other purposes. The government screwed up on this one, but the artist is being a douche, too.
I ran into a related problem recently. My mom just died of pancreatic cancer, and we needed some photos blown up for the memorial. The best ones we had were from Olan Mills. I took them to Walgreens, they took one look at the Olan Mills logo in the bottom corner and said, "No dice. Olan Mills owns the rights to those photos, nobody can reproduce them without permission." So I tried Kinkos, with the same results. My mom is dead, but some damn portrait studio will own the rights to her image until 2065 because she got her picture taken there and didn't read the contract.
According to the helpful folks at Kinos, nearly all large portrait studios will try to do this to you, not just Olan Mills. They must have a large legal outreach team, too, to make sure every minimum wage copyshop and photohut employee in the world knows not to copy these photos.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton