The Transformative Nature of a Photograph: Copyright and the Korean War Veterans Memorial

Amanda Carpenter is a JD Candidate at Osgoode Hall Law School.

The US Court of Appeals for the Federal Circuit has recently held that the U.S. Postal Service should compensate the sculptor of a column of marching soldiers at the Korean War Veterans Memorial in Washington for an image on a 37-cent stamp. A photo of this famous memorial can be found here, and the stamp can be found here.

The court found that the sculptor Mr. Gaylord was the sole author of the soldier sculptures, that his sculptures were not exempt from copyright protection under the Architectural Works Copyright Protection Act (AWCPA), and that the United States Court of Federal Claims had erred in holding that the stamp made fair use of the copyrighted soldier sculptures.

The photo of the column of marching soldiers found its way to the postal service by the work of a photographer who took the photograph of the Memorial as a retirement gift for his father. The photographer visited the Memorial on a few occasions, one such occasion being just after a snowstorm during which he took the disputed photograph. In 2006, Mr. Gaylord sued the photographer for copyright infringement. The photographer settled the dispute and agreed to pay Mr. Gaylord 10% of his net sales. In 2002, the Postal Service decided to issue a stamp commemorating the 50th anniversary of the armistice of the Korean War. The Postal Service selected the photograph taken just after a snowstorm for the stamp and paid the photographer $1500 for its use. The photographer told the Postal Service that it would need the permission of the owner of the copyright of the underlying work, which they did not get. The Postal Service acknowledged that it received over $17 million from the sale of nearly 48 million stamps. Mr. Gaylord then sued the government alleging infringement of his copyright.

In rejecting the argument that the use of the photo constituted fair use, the court rejected the argument that the work was ‘transformative’. A transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. If the work is transformative the courts will more likely judge the work to constitute a fair use because the goal of copyright – to promote science and the arts – is generally furthered by the creation of transformative works. The Court of Federal Claims concluded that this factor weighed heavily in favour of fair use because the stamp was transformative. The court explained that the photographer transformed the three-dimensional sculpture with his photograph by “creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings”. The Court of Appeal disagreed, and held that although the stamp altered the appearance of the Memorial by adding snow and muting the color, these alterations did not give a different character to the photo. They stated that “nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude”. The court rejected the argument for fair use even though Mr. Gaylord conceded that the stamp actually increased the value of the Memorial, a decrease in which is a factor in determining that a work does not constitute a fair use.

Turning to whether the Memorial was a joint work, the court rejected the argument that since the government commissioned the work the Memorial would be a joint work as a result. Also, even though government entities had Mr. Gaylord change minor points such as the position of the first soldier in the Memorial from “a celebratory squatting pose to standing”, this did not constitute evidence of joint authorship with the government “but rather of suggestion and criticism”. The government also asserted that it should escape liability because the Memorial is an architectural work, since architectural works are not afforded full copyright protection. The Court of Federal Claims unsurprisingly found that since the Memorial isn’t a building, it is therefore not an architectural work and thus afforded full copyright protection.

The dissenting judge found that the majority’s finding contravened national policy governing access to public monuments. He stated that under the statute under which Mr. Gaylord brought this suit, even if Mr. Gaylord held a valid copyright enforcement against the United States, it is barred by the terms of this statute for the sculptures were prepared “in the service of the United States” and “Government time, material, or facilities were used”. Many commentators side with this dissenting judge. In particular, they are troubled by the court’s finding of what constitutes a transformative work. They are also concerned about the chilling effects that this decision might have on commissions for public art. If works of public art cannot be photographed and displayed, the reason for commissioning such works is diminished. They also cite the confusion that stems from the government leaving the rights associated with the memorial with the artist and then displaying the artwork in public.

Many would say that the more they think about this decision, the more wrong it becomes. Thus, many predict that it may not be long before this case ends up before the United States Supreme Court to finally decide this matter or for Congress to take action and enact a separate exception for photographs of public art.