Photograph of Sculpture Is Not a Fair Use

As reported in my article, the difficulty with fair use is that “it is sometimes difficult to predict how a court will rule on a fair use case.”  Well, even the courts don’t always agree with each other.

Take, for example, the  Gaylord v. The United States case.  The U.S. Court of Federal Claims (a federal “trial court”) concluded that a photograph of  “The Column” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) that was used by the U.S. Postal Service for a stamp was a fair use because it was a transformative work, having a new and different character and expression from that of the sculpture.  But, on appeal of the trial verdict, the United States Court of Appeals for the Federal Court recently overturned that ruling, finding that the photograph/stamp was not a fair use.

Background on the Gaylord case is presented in my February 3, 2010 blog.   The Federal Court’s opinion includes photographs of the sculptures and the stamp, in addition to the basis for the ruling.  The Court began by explaining the criteria for determining fair use:

Fair use is a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560 (1985). Because “the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Id. at 560 (citation omitted). Section 107 requires courts to consider four nonexclusive factors when evaluating fair use:


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.


35 U.S.C. § 107. Each factor is “to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 577.

Significantly, the Federal Court found that the stamp does not reflect any “further purpose” than The Column.  The Court compared the stamp to Koons’ use of  Blanch’s photo in  Blanch v. Koons.  There, Koons, an artist, incorporated a copyrighted photograph of a woman’s feet adorned with glittery Gucci sandals into a collage “commenting on the ‘commercial images . . . in our consumer culture.’” 467 F.3d 244, 248 (2d Cir. 2006). The court determined that Koons’ use was fair use in part because his collage was transformative. Id. at 252-53.  The Court reasoned that the collage and the photo had “sharply different” purposes and that the collage was intended to be a “commentary on the social and aesthetic consequences of mass media.” Id. Such transformation of a copyrighted work into a larger commentary or criticism fall squarely within the definition of fair use.” In Gaylord, however, although the stamp altered the appearance of The Column by adding snow and muting the color, those alterations did not impart a different character to the work.   The Federal Court also found that the USPS’ use of the stamp was commercial because it received $17 million dollars in sales from the stamp, which indicated that the use was not a fair use.

As to the amount of the work used in the photograph, the Federal Court held that the number of the soldiers in the stamp (14 of 19) weighed against fair use.  Further, the Court found that The Column constituted the focus (“essentially the entire subject matter of the stamp”), which supported its finding against fair use.  But the Court found one factor in favor of fair use, because the stamp has not and will not adversely impact the sculptor’s efforts to market derivative works of The Column. “Someone seeking to take a photograph of The Column or otherwise create a derivative work would not find the stamp to be a suitable substitute for The Column itself. ”  In total, however, the Federal Court found that the factors heavily weighed against a fair use of the sculpture.

What does this show us?  First, that courts can disagree as to whether the use of a photograph of a copyrighted work is a fair use.  Second, to be safe and to avoid protracted litigation, always get permission from the copyright owner to use the photograph of a copyrighted work.

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