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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?
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.
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.
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.
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.
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?
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 the US Post Office we're talking about here, so we don't have to worry about any profits being made...
-William Brendel
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.
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.
"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.
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.
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.