US stamp featuring photo of monument isn’t Fair Use.

At first that may sound surprising, but Frank Gaylord, a sculptor, was awarded over half a million dollars because a stamp was made including a war memorial he’d designed.

Initially the Postal Service defended itself on the basis of co-ownership of copyright (having contributed to the design) which is an exemption under the Architectural Works Copyright Protection Act, and fair use.

In a 2008 court case, the first two defenses were dismissed, but the court accepted a fair use claim, but this was rejected on an appeal in 2010.

Fair use is a defense that tries to protect copyright holders, but allows use of the work that doesn’t unduly hold back science and the arts.

The factors used to determine fair use under copyright law are:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The court in the 2010 appeal looked at each factor and found that the first two elements weighed most heavily in the verdict.

The argument that the photograph used on the stamp is a transformative work (it changes the purpose or character of the original), wasn’t helped by the Postal Service entitling the stamp ‘Korean War Veterans Memorial’ – suggesting it’s a depiction of Gaylord’s work, rather than a original work based on it.

While the earlier court had ordered the US Postal Service to pay Gaylord just $5,000 based on the largest amount the USPS had paid licensing a photograph.

The court on appeal instead found that the USPS owed $684,845 based on Gaylord’s normal rates and 10% of the fee the creator of the derivative work (the photograph) made.
The 10% rate was only applied to the stamps that the Postal Service believes have been bought by collectors (considered pure profit). The remainder of the award is a 10% royalty on related merchandise the Postal Service sold and an interest payment to make up for the delay in payment while the court cases have rumbled on.

How Can I Help?

If you, or someone you know, has a copyright issue or need any help with Intellectual Property issue, please contact me for a free 30 minute consultation at or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +


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