Korean War Monument Stamp Allegedly Violated Sculptor's Copyright

provided that the licensing entity established by mr. lecky at the time of the dedication, the evidence, however, is not as defendant suggests. for the reasons addressed suit for copyright infringement; korean a copyright," blanch, 467 f.3d at 259 (citing campbell, 510 u.s. at 78), the court finds that kwvm. px 6, 9, 11, 15, 19. as four of these registrations were made prior to installation * infringement afforded architectural works. beyond not being a building in the ordinary competition to select the figural sculptor for the sculptural component to be included in the below, the court finds that mr. gaylord performed virtually all of the artistic work on the more difficult to establish when the former works are copied." campbell, 510 u.s. at 586. thus, as there was no intention to create a joint work and mr. gaylord created "the character, altering the first with new expression, meaning, or message." campbell, 510 u.s. of the statues through controlled lighting. see generally, id. at 374-75. the postal service expression, now known or later developed, from which they can be perceived, reproduced, allowed to a claim of fair use where the work is factual or informational, and (2) whether the artist's work in a transformative manner, not to exploit the work's creative virtues, but rather relation to the copyrighted work as a whole, the supreme court has recognized that analysis rests upon the fact that the monument contains walkways; a feature which the copyright the copyright to the kwvm "outright" and offered to authorize mr. alli to sell prints and colonel weber is a veteran of korea and served as a vab member. id. while the final this statement of the facts constitutes the court's principal findings of fact under rule1 factual background1 veterans memorial advisory board ("vab"), an organization responsible for recommending applications for his work on "the column." stip. 11. mr. gaylord received the following generally speaking, the kwvm consists of three primary components: (1) "the3 infringing work[.]" id. at 566. the supreme court explained, "[the infringer] quoted these gaylord seeks a royalty of ten percent on the postal service's net sales of the commemorative of the memorial, and obtaining private funds for its construction and upkeep. id. the standing position prior to casting. id.; lecky, tr. at 492. lastly, defendant argues that cla, -10- 565. the supreme court added, "the fact that a substantial portion of the infringing work creating the stamp. verbatim in the stamp. rather, mr. alli and the postal service used variables to lessen the to incorporate "real life" into the stamp image, id, and paid mr. alli $1,500 for use of his complaint against mr. alli in the u.s. district court for the district of maryland, claiming a retirement gift for his father, who served in the marine corps in korea. alli, tr. 370-71, am. inc., 975 f.2d 832, 842 (fed. cir. 1992) (citation omitted). progress is thus encouraged interdependent parts of a unitary whole." 17 u.s.c. � 101. the touchstone of joint also provided instructions to mr. gaylord, telling him to change the appearance of one history of "the column" project thus shows an open and contentious dispute regarding whether he is viewing a photograph of statues or actual human beings. alli, tr. at 377-78. inc., 484 f.3d 1359, 1370 (fed. cir. 2007). on october 28, 1986, congress enacted legislation to erect a memorial in washington, in the sense that they are to be embodied in a single work." id. "joint authors co-owning of the statues to the stamp. unlike the text in harper & row, the statues were not copied lecky reworked the ponchos after they appeared to depict too much wind. id. the vab * soldiers, under the freezing conditions that many veterans experienced. id. mr. alli took government, which would grant it an unlimited, fully paid license in the sculpture. section amateur photographer, visited the kwvm during a snowstorm and took a photograph, furthermore, had congress intended to extend the awcpa to monuments and passages precisely because they qualitatively embodied ford's distinctive message." id. at members. gaylord, tr. at 125-26, 132, 174, 184-85; lecky, tr. at 491. the cfa did structure. rather, the copyright office defines "buildings" as permanent and stationary i don't remember who exactly took the wax and filled in, probably frank. i may have done on at least five occasions between 1993 and 1995, mr. gaylord submitted copyright dx 37 at 2 (stamp). while most of these statues are obscured by their fellow soldiers and -2- works. a limitation on such copyright protection was codified in 17 u.s.c. � 120, which music corp. v. jerry vogel music co., 140 f.2d 266, 267 (2d cir. 1944) (citation omitted). u.s.c. � 102(a). value to the original," by incorporating "new information, new aesthetics, new insights and alli sought permission to sell his photograph. id. at 389-90. through a series of referrals, never sold photographs, postcards, magnets, or keychains of "the column." gaylord, tr. others with buckled chin-straps. id. at 38-39. defendant also notes that cla worked with an additional showing of `substantial similarity not only of the general idea but of the to comment on the work's social and aesthetic meaning. id. -4- defendant claims is applicable to the present case. -6- mr. gaylord's copyrighted sculpture. the clerk is directed to enter judgment for the cla, the cfa, and the vab each contributed copyrightable expressions to the soldier "the column" in the stamp was a fair use and defendant is not liable for copyright in january 1996, john alli, a retired united states marine corps pilot and earnest v. acuff-rose music, inc., 510 u.s. 569, 577 (1994) (quoting stewart v. abend, 495 u.s. "promote the progress of science and useful arts, by securing for limited times to authors � 410(c). order #8 shows the poncho sketch soldiers). regarding the use of wax to modify the ages infringed his exclusive copyright in the sculpture. compl. �� 14-15. as damages, mr. the stamp was retired on march 31, 2005, the postal service produced approximately 86.8 have included them in its list of structures. d. the fair use doctrine was copied verbatim is evidence of the qualitative value of the copied material, both to the hundreds of pictures of "the column" before he achieved this expression, experimenting "the column." the artistic expression of "the column" can be summarized as a three- copyright protection for "original works of authorship fixed in any tangible medium of november 5, 2008. the sculpture's importance. contribution to the collective work embodied by the memorial as a whole." px 17. the mr. gaylord. gaylord, tr. at 110, 183-84. mr. gaylord also created the composition of the contractor for the creation, construction and installation of the kwvm. stip. 3. the corps ago. id. at 199-200. the stamp thus has not impacted mr. gaylord's attempts to market regarding the fourth factor, the effect of the use upon the potential market for or made before or within five years after first publication of a work shall constitute prima facie expression ultimately seen in the stamp by making it colder. id.; see also px 26. thus, the in this opinion, the court will refer to the trial transcript by witness and page as "name,2 stationary structures designed for human occupancy, including but kwvm productions, inc., would receive ten percent of the net sales of any prints, posters "the column," using colonel bill weber's suggestion to stagger the statues. id. at 121. blanch, 467 f.3d at 251-52. the postal service further altered the expression of mr. u.s.c. � 201(a). the copyright act defines a "joint work" as "a work prepared by two or for any profits earned thereby." cmty. for creative non-violence v. reid, 846 f.2d 1485, 1995, the 42 anniversary of the armistice of the korean war. stip. 8.nd the korean war, the stamp is transformative, providing a different expressive character than maryland compl. � 18). mr. alli and mr. gaylord settled that case on april 25, 2007. dx gazebos, and garden pavilions.'" id. (citing h.r. rep. no. 101-173 (reprinted in 1990 owner of the copyright in "the column." judge ("copying requires evidence that a defendant literally copied the designs or, alternatively, -8- that "real life" infringed mr. gaylord's copyright in "the column." dx 39 (district of 24. hereafter, whenever the copyright in any work protected under the upon the ideas and information conveyed by a work.'" atari games corp. v. nintendo of much like a walkway or bridge, the kwvm permits individuals to access through it, but is war ii, is a professional sculptor who resides in barre, vermont. stip.1; gaylord, tr. at 43- copyright ownership and/or royalties in the "the column." px 14. on february 8, 1995, expression of those ideas as well.'") (citing shaw v. lindheim, 919 f.2d 1353, 1356 (9thcir. def.'s post-tr. br. at 14. the court therefore must analyze the postal service's use of "the sculptures to become part of the overall memorial, the soldier sculptures constituting a statues. id. at 38. for example, defendant explains that the vab contributed a background 107; architectural works copyright the stamp or on any retail goods, and mr. gaylord did not give his permission for the postal second fair use factor carried limited weight in its analysis because the defendant used the -16- to commercialize his copyright because the stamp is an inadequate substitute for "the tr. at 104-106. in some instances, cla, acting as supervisor of the project, instructed mr. scott bolden, with whom were gregory g. katsas, assistant attorney general, john j. stainless steel statues representing a platoon of foot soldiers in formation. stip. 5; gaylord, ********************************** * conclusion visual representation embodying such designs . . . ." px 8 at 5. mr. gaylord and cla work is transformative. courts evaluate whether the accused work "merely supersede[s]" the into a new set of figures. mere participation in, contributions to, and review of work does copyrights in "the column" from small clay sketches to the final sculpture as installed in the for defendant. setting of "the column." def.'s post-tr. br. at 41. postal service further transformed the character and expression of "the column" when registered july 26, 1990; (2) no. vau 280 954, registered november 15, 1993; (3) no. vau d. the stamp 280 955, issued november 18, 1993; (4) no. vau 306 934, registered august 12, 1994; and suggestions that were representative of the soldiers of the korean war. id. defendant adds defendant asserts an additional affirmative defense, arguing that because "the the united states, * the corps of engineers selected cooper-lecky architects, p.c. ("cla") as the prime -9- 37 c.f.r. � 202.11(b)(2). the copyright office excludes from registration under awcpa stamp and related merchandise. pl.'s post-tr. br. at 9. instructed mr. gaylord to "stop work on th[e] project immediately . . . ." px 39. the thus enacted the copyright act of 1976, pub. l. no. 94-553, 90 stat. 2541, to provide korean war, captured as a single moment in time. see gaylord, tr. at 105; px 1. mr. alli, sculpture in the stamp. see 17 u.s.c. � 107. accordingly, the postal service did not at 579 (citation omitted). "[t]he more transformative the new work, the less will be the his copyright in the sculpture. comp. �� 14-15. the court conducted a trial in washington, the 50 anniversary of the armistice of the korean war. stip. 13. the postal service electedth infringement, including the minimum statutory damages as set forth * approve of the use of ponchos, but the poncho concept was based upon models produced by 1. the stamp is transformative in nature. factor. harper & row, 471 u.s. at 565. this same agreement acknowledged that mr. gaylord was the sole owner of the copyright "the column" underwent dramatic changes during its creation, the evidence shows that mr. protection act. of "the column"and the fifth within months of the installation, mr. gaylord is entitled to a that a defendant had access to the protected designs before creating the accused designs with steve altman photography v. united states, 18 cl. ct. 267, 281-82 (1989) (finding that the caused no harm either to the value of "the column" or to the market for derivative works. understanding." blanch v. koons, 467 f.3d 244, 251-52 (2d cir. 2006) (quoting castle rock united states, including several larger than life size sculptures in granite and cast metal. px story for each of the soldier statues, such as ethnicity, military service, task, and equipment cla stated that the government "remain[ed] adamant about the copyright issue" and "building," also chose not to list monuments and memorials. again, had the office intended that cla, mr. gaylord and mr. nelson decided that the soldier statues should wear ponchos expressive or creative, such as a work of fiction, or more factual, with a greater leeway being copyright; fair use doctrine, 17 u.s.c. � service") to issue a 37-cent postage stamp commemorating the 50 anniversary of theth gaylord made the committees' requested changes. mr. gaylord reworked the statues 74. mr. gaylord complied with these instructions. id. "the column" was completed and admission no. 20). as for derivative works, the record shows that mr. gaylord has made and review of work does not necessarily create a joint work. see pods, inc. v. porta stor, b. standard for decision e. resulting litigation mr. gaylord owns a valid copyright in "the column." mr. gaylord registered his -3- photographers. see kelly, 336 f.3d at 821-22; perfect 10, 508 f.3d at 1168. similarly, it is a team of four architects from pennsylvania state university, veronica burns lucas, column" are not evidence of joint ownership, but rather of suggestion and criticism. while evidence of the validity of the copyright and of the facts stated in the certificate." 17 u.s.c. column" is a creative work of art, the postal service did not copy mr. gaylord's creation in (3) the amount and substantiality of the portion used in relation to stamp is substantially similar to "the column." the stamp features a photograph of a the vab, and the cfa each collaborated to modify the entire compositional structure and alleging that the postal service, by issuing a stamp that contains an image of "the column," 373-74, 376. the photograph also won first place in a naval institute press photo contest. used the snow covering the statues as a tool to obscure the statues and create a heightened congress, through the architectural works copyright protection act ("awcpa"), -12- himself, under the supervision of cla or based upon ideas offered by the committee armistice of the korean war. this commemorative stamp ("the stamp") features a the postal service copied "the column" in the stamp, plaintiff has established proof of is of a commercial nature or is for nonprofit educational purposes; defendant's attempt to extend the awpca to "the column," however, is unavailing. derivative works. the casting. lecky, tr. at 545-46, the shipment of the models pre-dates the addition of the ponchos, see stated that "copyright ownership of the work of art shall be covered in a separate agreement," humanly habitable structures that are intended to be both permanent in addition to the fact that, in its briefings and at trial, defendant did not contest that work. 17 u.s.c. � 107(2). this factor "calls for recognition that some works are closer to (2005). column." these facts are analogous to those presented in kelly v. arriba soft corporation, only limited attempts to commercialize his copyright in "the column." mr. gaylord has war veterans memorial; postal service * 52(a) of the court. other findings of fact and rulings on mixed questions of fact and law are set image. see mccaffrey, tr. at 583. the efforts of mr. alli and the postal service thus the january 19, 1993 subcontract between mr. gaylord and cla incorporated some copyrighted work, the first being relevant to the present case: "(1) whether the work is id. at 373, 377. mr. alli also achieved his vision using various photographic effects and of the provisions from the prime contract between the corps of engineers and cla, but did mr. gaylord filed two lawsuits alleging copyright infringement of "the column." on that allowed work and payment to resume, but it deferred the ultimate issue of copyright value of the copyrighted work, courts are "to consider not only the extent of market harm the government, the exclusive action which may be brought for this court must give the second factor limited weight in the fair use analysis. id. through his photographic talents, transformed this expression and message, creating a legislation authorized the american battle monuments commission ("abmc"), an this case arises from the decision of the united states postal service ("postal surrealistic vision. the postal service thus created a transformative work. although "the kwvm. stip. 4; px 1. defendant. * adverse impact on the potential market' for the original." campbell, 510 u.s. at 590 (citation copyright in the sculpture and he referred defendant to mr. lecky. dx 41; px 32 at 3. photograph of many of the 19 stainless steel soldier sculptures that are part of the korean tr. __," and to trial exhibits as "px __" for plaintiff's exhibits, and "dx__" for defendant's suggest that mr. lecky performed the work to make the soldier "stand up." in fact, there is see lecky, tr. at 491 ("well, frank was the sculptor, i, kent and i were the, sort of critics. court's characterization of the copied work as using only a "meager . . . infinitesimal amount" "the column" on the stamp is fair use of the sculpture, making it exempt from infringement. pictorial representations of the work, if the building in which the work is embodied is located 15. the postal service did not seek mr. gaylord's permission to depict "the column" on opinion and order employed. see triano, tr. at 320. mr. gaylord's son-in-law, john triano, assisted him by analyzed, it is apparent that the market factor weighs in favor of fair use because the stamp the postal service issued the stamp on july 27, 2003. stip. 14. from this date until 1. mr. gaylord is the sole copyright owner of "the column." architects' design included 38 larger-than-life granite soldiers. lecky, tr. at 465-66; px 1. in the united states court of federal claims -11- equipment. id. at 375 (using a portrait lens and a tripod), 378 (using slide film), and 379 (choosing glossy prints). mr. alli's efforts resulted in a work that has a new and different to structures "`that are used, but not inhabited, by human beings, such as churches, pergolas, in "the column." id. however, mr. gaylord terminated both of these agreements in sales which included receipt of $1,000 for the u.s. army's one-time use of the image in a life" on the stamp. see gaylord, tr. at 153. mr. alli, however, advised the postal service july 25, 2006, mr. gaylord filed suit in this court alleging that the postal service infringed column" with only criticisms and suggestions of the various committees, plaintiff is the sole an effort to exploit its virtues. rather, as discussed above, the postal service, through the plaintiff, * ownership. px 8 at 5. months later, cla contacted mr. gaylord to inform him that "the such infringement shall be an action by the copyright owner against 1498 (d.c. cir. 1988) (citation omitted). however, mere participation in, contributions to, installed as part of the kwvm in 1995. stip. 7. the kwvm was dedicated on july 27, heidi e. harvey, with whom was danni tang, fish & richardson p.c., boston, "having explored the statutory factors and weighed them in light of the purposes of government argues that the kwvm was designed for "human occupancy" in a similar memorials, it presumably would have drafted the awcpa to reflect such protection. the material that may be exempted from infringement, it provides a four-factor test that courts not include the copyright provisions. compare px 8 at 3 with dx 2. instead, the subcontract second, defendant's proffered contributions of the various committees to "the structures it does not consider to be buildings, such as walkways and bridges. id. at � don leon, john lucas, and eliza pennypacker oberholtzer, won a contest sponsored by the copyright infringement. def.'s post-tr. br. at 27-30. term. the structures used in the definition of "building" by the copyright office are of justice, washington, d.c., and eric f. mulch, united states postal service, of counsel, 20, 2008, and reply briefs on september 22, 2008. the court heard closing arguments on required him to coordinate and comply with the directions of cla throughout the project. and stationary, such as houses and offices, and other permanent and * his reasonable and entire compensation as damages for such and inventors the exclusive right to their respective writings and discoveries[.]" congress in terms of quantity, the stamp depicts 14 of the 19 soldier statues in "the column." meaning of the word, "the column" does not fit the copyright office's definition of the being considerably narrower." blanch, 467 f.3d at 256. office excludes from its definition of "building." in section 504(c) of title 17, united states code[.] further, the evidence shows that the parties never intended to create a joint work. in here, while both the stamp and "the column" are intended to honor the veterans of independent commission, to establish the kwvm. id. section 2 created the korean war war veterans memorial ("kwvm") located on the national mall in washington, d.c. 2. "the column" is a creative work. or by a contractor, subcontractor, or any person, firm, or corporation a. jurisdiction abmc to design the kwvm. px 1 at 2 (the kwvm sculptor selection procedure). the court found that copying of only 300 to 400 words of president ford's unpublished `permits [and requires] courts to avoid rigid application of the copyright statute when, on disputes arose regarding ownership. in 1992, cla asserted the right to obtain copyright 201 of title 17 recognizes that a single copyright may jointly vest in several authors. 17 furthermore, it is unlikely that the stamp will impact mr. gaylord's future attempts plaintiff, frank c. gaylord ii, an artist and world war ii veteran, sculpted these 19 soldiers with ultimate approval by cfa. id. regarding this change, defendant contends that mr. character than "the column" and is thus a transformative work. campbell, 510 u.s. at 579; the copyrighted work as a whole; and no evidence in the record that a squatting version of the soldier existed immediately before in formation, known as "the column." mr. gaylord filed suit in this court on july 25, 2006, 202.11(d)(1). photographing it as he was present at the kwvm. second, to an ordinary observer, the monochromatic image. mccaffrey, tr. at 583. this adjustment enhanced the surrealistic in 2002, the postal service decided to issue a 37-cent postage stamp commemorating 28 u.s.c. � 1498(b). statues are visible on the stamp. the postal service's use of many of the statues weighs of the soldiers, the evidence does not establish that this work was performed by mr. lecky. the core of intended copyright protection than others, with the consequence that fair use is innovation corp. v. anthony california, inc., 439 f.3d 1365, 1368 (fed. cir. 2006) figural sculptor for the sculptural component of the kwvm. stip. 4. at that time, mr.3 no. 06-539c the viewer experiences a feeling of stepping into the photograph, being in korea with the second factor to carry little weight in the fair use analysis. while mr. gaylord's "the limited utility to the fair use analysis where the challenged work is transformative. id. at 257. the united states in the court of federal claims for the recovery of harper & row publishers, inc. v. nation enters., 471 u.s. 539, 560 (1989). when when evaluating the third factor, the amount and substantiality of the portion used in definition. id. to support this argument, defendant cites to a passage of awpca's evaluating a potential fair use under these factors, the supreme court has emphasized that however, even when a creative work has been copied, the second factor may be of detailing cla's services for the kwvm project. dx 2. cla then sponsored an open acting for the government and with the authorization of consent of changed the qualitative message of "the column" and mitigated the weight of the third the arts and sciences, which is accomplished when the "act `encourages others to build freely authorship is "a joint laboring in furtherance of a common design." see edward b. marks harm cannot be presumed. see id. at 591; perfect 10, inc. v. amazon.com, inc., 508 f.3d (4) the effect of the use upon the potential market for or value of the for the reasons stated below, the court rules in favor of defendant, finding that, while (1) the purpose and character of the use, including whether such use column" subject to prior approval by mr. gaylord and an agreed royalty schedule. px 17. occasion, it would stifle the very creativity which the law is designed to foster.'" campbell importance too." campbell, 510 u.s. at 587. for instance, in harper & row, the supreme they both honor korean war veterans. as such, this court infers proof of copying. see amended their agreement on january 25, 1994, adding that "[t]he copyright for this work will copyright and that the alleged infringer copied the work. feist publ'ns, inc. v. rural tel. the proper approach is a "sensitive balancing of interests." campbell, 510 u.s. at 584 (citing a joint work will be found where the authors intend their contributions to "be complementary surrealistic environment with snow and subdued lighting where the viewer is left unsure column;" (2) the mural wall; and (3) the reflecting pool. stip. 9. while mr. gaylord wall, and cla was responsible for designing the reflecting pool. stip. 10. competing and conflicting ideas, comments, and suggestions of multiple committee members states, by a corporation owned or controlled by the united states, abmc ha[d] suddenly withdrawn their claim for copyright ownership and/or royalties received from same." px 14. later that year, mr. gaylord and cla entered into a revised not intended for occupancy. defendant's argument that the kwvm is a building explicitly through the fair use doctrine, codified in 17 u.s.c. � 107. "the fair use doctrine thus efforts of mr. alli and its own engravers, changed mr. gaylord's sculpture to create a new, intended to house individuals; either for the sake of providing shelter or for another purpose -5- 41. for instance, in blanch, the u.s. court of appeals for the second circuit found that the be held by [mr. gaylord]." px 13 at 2. in may 1994, the abmc withdrew all claims for infringement. u.s.c.c.a.n. 6935, 6951)) (emphasis removed). defendant concludes that, because the with angles, exposures, focal lengths, lighting conditions, as well as the time of year and day. or otherwise communicated, either directly or with the aid of a machine or device." 17 submitted by mr. gaylord in 1990, the transformation was the result of mr. gaylord's labor, there is substantial similarity. see trek leasing, inc. v. united states, 66 fed. cl. 8, 18 column" is an architectural work, the public, and thus the postal service, may make, first, defendant overstates the physical contributions of mr. lecky. the record does or framed artwork of the photograph sold by mr. alli. px 42. mr. alli accounted for his intended to convey a message rather than to be occupied by individuals. the fact that heavily in favor of defendant. in order to establish copyright infringement, a plaintiff must show that he owns a valid copyright in a work are deemed to be tenants in common, with each having an independent use." id. when conducting this analysis, courts often consider whether the new work "adds mr. gaylord, a veteran of the u.s. army who served as a paratrooper during world omitted). courts are to account for both harm to the value of the original work, as well as the "promoting the progress of science and useful arts," u.s. const., art i, � 8, cl. 8, was -14- c. mr. alli's photograph original work, or whether it "adds something new, with a further purpose or different proof of copying can be inferred from access and substantial similarity. amini 17 u.s.c. � 107. these four factors, while mandatory, are not meant to be exclusive. see it is so ordered. sony corp. of am. v. universal city studios, inc., 464 u.s. 417, 455 n.40 (1984)). in these miniatures because their price was too high. id. at 199. in fact, mr. gaylord (filed: december 16, 2008) of engineers and cla entered into contract no. daca31-90-c-0057 on april 11, 1990, forth in the later analysis. kwvm includes walkways and benches, it was designed for human occupancy and is gaylord's studio. stip. 6. included depictions of "the column" without his permission and without compensation. px office and thus is afforded limited copyright protection. def.'s post tr. br. at 29. the caused by the particular actions of the alleged infringer, but also `whether unrestricted and d.c., on june 16-20, 2008. the witnesses in order of appearance were: mr. gaylord; mr. copyrighted work. wheeler, judge. 35, 35a. from 1990 to 1995 when he worked on "the column," mr. gaylord was self- -7- postal service copied his work, his right to reproduce is not absolute. rather, this right is subject to several exceptions and exemptions, including fair use, 17 u.s.c. � 107, which substantial similarity, and courts will use an "ordinary observer test" to evaluate whether when analyzing the first factor of the fair use doctrine, courts inquire whether the new reproductions of the photo in return for a ten percent royalty. id. at 390-91. messrs. alli and construction of the memorial. lecky, tr. at 467-68.2 at 208-09. although mr. gaylord sold several ten- to twelve-inch miniatures of the soldiers c. plaintiff's case of copyright infringement s/thomas c. wheeler while mr. gaylord has established that he solely owns a valid copyright and that the unlikely that these one by one-and-a-half inch stamps would be adequate commercial based upon the foregoing, the court finds that defendant's stamp was a fair use of right to use or license the copyright, subject only to a duty to account to the other co-owner soldier from italian to hispanic, as well as to depict certain soldiers as clean-shaven and million stamps as well as a variety of other retail goods featuring images of the stamp. stip. service to use an image of "the column" on the stamp. stip. 16. further, neither the stamp impasse was partially resolved in january 1993 when the parties entered into an agreement article i, section 8, clause 8 of the united states constitution empowers congress to 17. an image of the stamp is set forth below: distribute, and display pictures and photographs of the sculpture free from claims of 1146, 1168 (9th cir. 2007). lecky entered into an agreement regarding the photograph on april 20, 1998, which director of the postal service's stamp services. the parties filed post-trial briefs on august entm't, inc. v. carol publ'g group, inc., 150 f.3d 132, 142 (2d cir. 1998)). discussion -17- gaylord was a nationally recognized sculptor with a number of public works throughout the widespread conduct of the sort engaged in by the defendant would result in a substantially and that mr. gaylord would "have the right to a credit line on the completed design or any during construction of the kwvm; mr. alli; charles delaney, manager of the postal life" actually increased the value of "the column." dx 43 (response to request for different character and expression than mr. gaylord's "the column." campbell, 510 u.s. such as religious services. in contrast, the kwvm was designed as a monument to honor triano; terry mccaffrey, manger of the postal service's stamp development department; gaylord's artistic skill that created "the column," indicating that he is the sole author. see infringement: ********************************** * states that copyright protection in an architectural work "does not include the right to prevent the united states waived sovereign immunity regarding copyright infringement in amini innovation corp., 439 f.3d at 1368. circuit held that the market factor weighed in favor of fair use because thumbnail images defendant, however, contends that "the column" was jointly authored by the v. * although mr. gaylord was chosen as the sole sculptor for the kwvm, his subcontract gaylord's statues by making the color in the "real life" photo even grayer, creating a nearly under the second fair use factor, courts are to evaluate the nature of the copyrighted all are pictured from a frontal perspective, the fact remains that a substantial number of the 207, 236 (1990)). while section 107 identifies a number of potential fair uses of copyrighted fact, it appears that from the moment copyright ownership was discussed between the parties, massachusetts, for plaintiff. mr. gaylord to change the age of soldiers by removing wrinkles from the faces of the statues served by the postal service's stamp. thus, the court finds that the postal service's use of 4. the stamp has little impact upon "the column's" potential market. "the column" is not a "building" and thus does not fall under the exemption to copyright agreement which acknowledged that mr. gaylord was the "sole author of the soldier commemorative stamp; ownership of more authors with the intention that their contributions be merged into inseparable or significance of other factors, like commercialism, that may weigh against a finding of fair serv. co., 499 u.s. 340, 361 (1991). under the copyright act, "certificate of registration that they would need, in addition to his permission, the permission of the owner of the work is published or unpublished, with the scope for fair use involving unpublished works nature of suggestions and constructive criticisms. regarding the value of "the column" itself, plaintiff conceded that defendant's use of "real significant number of the statues and, while the two works do not share exact expressions, a day after filing suit against the united states in this court, mr. gaylord filed a harm to the market for derivative works. id. (citing harper & row, 471 u.s. at 568). when 28 u.s.c. � 1498(d), permitting plaintiffs to bring actions in this court: (5) no. vau 342 493, registered may 1, 1995. px 6, 9, 11, 15, 19. -15- similarly, in the present case, the transformative nature of the stamp causes the to include monuments and memorials in the definition of "building," it presumably would frank gaylord, * photographer was the sole author because his artistic skill created the photograph). abmc sought the assistance of the u.s. army corps of engineers in the design and gaylord to institute changes to the appearance of the soldiers. gaylord, tr. at 125-26, 173- d.c. to honor veterans of the korean war. see pub. l. no. 99-572 (1986). section 1 of this used by internet search engines could not be a market substitute for full-sized images by quality and importance of "the column"and to alter the expression of the stamp. mr. alli 336 f.3d 811 (9th cir. 2003) and perfect 10, 508 f.3d at 1146. in both cases, the ninth thomas c. wheeler permitted the foundry to destroy the molds used to make miniatures approximately five years copyrighted expression." id. mr. gaylord and cla entered into an agreement which permitted cla to license "the must be made of not only "the quantity of the materials used, but . . . their quality and designed "the column," cla selected artist louis nelson as the muralist for the mural column" is creative, indicating that the second fair use factor weighs in favor of plaintiff, 5. defendant's use of "the column" as depicted in the stamp is a fair use. performing some of the labor and handling the business, accounting, and paperwork for mr. against fair use. this fact is somewhat mitigated, however, by the quality and importance 3. the stamp features a substantial part of "the column" but minimizes __." for lengthy exhibits, page citations also are included. the original design for "the column" called for 38 soldiers, the final design featured 19 b. copyright of "the column" defendant contends that the kwvm is a "building," as defined by the copyright nor the related retail goods identified mr. gaylord as the sculptor of "the column." stip. infringe mr. gaylord's copyright. exhibits. the parties' pretrial stipulations of fact, filed on may 16, 2008, are referred to as "stip. commission on fine arts ("cfa"), indicating that the government has an unlimited, fully a little bit."). further, as for the transformation of soldier no. 1, the evidence does not 57. in 1990, mr. gaylord participated in and won cla's open competition to select the mr. alli located mr. lecky. id. at 388-90. mr. lecky wrongly told mr. alli that he owned version of "the column" evidences stark differences in the statues from the original sketches -13- with wax. id. at 39. defendant states that cla reworked a squatting soldier no. 1 into a surrealistic effect. see alli, tr. at 377. he added to this effect by sharply reducing the color pub. l. no. 101-650, 104 stat. 5133 (1990), extended copyright protection to architectural a court finds that the allegedly infringing work is transformative under the first factor, market defendant argues that the column was jointly authored by cla, vab, and the when evaluating this factor, courts often make two distinctions regarding the nature of the poster for the 50 anniversary of the korean war. dx 42, 47.th defendant alleges that mr. lecky performed this work in his washington, d.c. office, see id. at 382. after being told by a national mall vendor that the kwvm was copyrighted, mr. the court concludes that the stamp is a transformative work, having a new and manner as museums, gazebos, or garden pavilions and thus fits within the copyright office's service's stamp acquisition and distribution department; and david e. failor, executive potential market for "the column" and the fourth factor weighs in favor of fair use. substitutes for future products sold by mr. gaylord. thus, the stamp has no impact on the in the present case, defendant alleges that the postal service's use of an image of not limited to churches, museums, gazebos, and garden pavilions. dimensional sculptural snapshot of a group of soldiers on an undefined mission during the covered by the awpca. a. the kvwm and "the column" reduced the color even further when producing the stamp, creating a nearly monochromatic mr. gaylord is the sole copyright owner of "the column," the postal service fairly used the here, the evidence shows that defendant's stamp has little or no impact upon the autobiography was copyright infringement. the supreme court disagreed with the appellate with the critique and suggestions of the committees. mr. gaylord was able to translate the within two or three years after the completion of "the column," there was limited interest copyright registrations relating to his work on "the column:" (1) no. vau 187 93, in or ordinarily visible from a public place." a building, however, is not any man-made copyright laws of the united states shall be infringed by the united at 579; blanch, 467 f.3d at 251-52. the first factor of the fair use analysis thus weighs column" under the four fair use factors. 17 u.s.c. � 107. act notably is silent regarding such structures. the copyright office, in defining a copyright ownership, ultimately with cla's concession that mr. gaylord was the sole owner prima facie presumption of copyright validity in "the column." 17 u.s.c. � 410(c). paid license in the sculpture. def.'s post-tr. br. at 31. to this end, defendant states that (2) the nature of the copyrighted work; the making, distributing, or public display of pictures, paintings, photographs, or other not necessarily create a joint work. see pods, 484 f.3d at 1370. rather, it was mr. px 40 at 2 (change order #6 shows the model shipment to washington, d.c. and change defendant. no costs. e. the architectural works copyright protection act originator and to the plagiarist who seeks to profit from marketing someone else's 1990)). expert testimony is not needed for the finder of fact to make a judgment of are to use to determine whether the alleged infringer is afforded protection from cannot be presumed. campbell, at 591; perfect 10, inc., 508 f.3d at 1168. second, when entitled "real life." stip. 12; alli, tr. at 371; dx 24. mr. alli intended the picture to be * the veterans of the korean war. see pub. l. no. 99-572 (1986). it is an artistic expression market or value of "the column." first, since the stamp is transformative, market harm of the copyright. october 1995, claiming that cla had breached the agreements by distributing a book which fargo, director, commercial litigation branch, civil division, united states department ownership of "the column" on behalf of the government. in a september 3, 1992 letter, individuals may traverse through the kwvm does not detract from its intended purpose. the purpose of the copyright act is not to reward authors, but to achieve progress in copying. first, there can be no dispute that mr. alli had access to "the column" when 2. the postal service copied "the column." not establish that mr. lecky reworked the ponchos as defendant claims. specifically, while eric f. mulch, an attorney for the postal service; william lecky, principal member of cla of the book because of the "expressive value of the excerpts and their key role in the px 8 at 2. "the column" did undergo changes from its inception to its dedication. although photograph. alli, tr. at 383. mr. alli did not seek mr. gaylord's permission to put "real the site for the kwvm, selecting the design for the memorial, promoting the establishment legislative history, which indicates that congress intended to extend coverage of the awcpa sculptures, and that the contributions of the various committees and cla were more in the structures designed for human occupancy: