Korean War Memorial Stamp Infringed Copyright

The federal government infringed on the copyright of the person who designed the Korean War Memorial in Washington, D.C., when the postal service issued a stamp showing the memorial’s soldiers on a snowy day.

Frank Gaylord, who designed and sculpted the 19 soldiers in the memorial called “The Column,” sued the United States over the stamp, which was issued in 2005 and sold over 86.9 million stamps. The stamp used a picture taken by a photographer in January 1996 that showed 14 of the soldier sculptures covered in snow.

Gaylord had obtained a copyright on his sculptures. The U.S. Postal Service did not obtain his permission for the stamp’s image and he sued. The government argued that the image was a “fair use” of the copyrighted sculptures, and the trial court agreed. However, on appeal, the court found the use was not a fair use since it did not transform the character of The Column. “Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude,” the appellate court found.

The dissent in the case chided the majority, stating, “The Korean War Veterans Memoral is a work of public art and a national monument. It was authorized by Congress, installed on the National Mall, and paid for by appropriated funds. My colleagues on this panel now hold that persons who produced this public monument for the United States, under a contract which requires that copyright is in the United States, can nonetheless require the United States to pay damages for copyright infringement based on use of a photograph of the Memorial in snow on a postage stamp.”

The appellate court remanded the case to determine the amount of damages.

Gaylord v. United States, Federal Circuit No. 2009-5044, issued February 25, 2010.