Damaged In The Mail: Court Awards Sculptor $540,000 For Infringement On Stamp

 

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I wrote previously about sculptor Frank Gaylord whose evocative work The Column, captured in a photograph taken after a snowstorm, was reproduced without his permission on a stamp issued by the U.S. Postal Service. Gaylord sued for infringement and won after the court rejected the Post Office’s fair use defense.

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The case came back to the appeals court when the parties could not agree on the amount of damages to be awarded to Gaylord, and specifically the amount owed as a result of sales of the stamps to collectors. The trial court had determined that a 10% per-unit royalty was appropriate and the Postal Service had received $5.4 million in “almost pure profit” from sales to collectors of stamps that were never used to send mail, resulting in an award of $540,000 to Gaylord. The Postal Service appealed.

The appeals court upheld the lower court’s analysis of the “reasonable license on which a willing buyer and a willing seller would have agreed for the use taken by the infringer.” “Mathematical exactness” is not required: just a reasonable approximation under the circumstances of the case. Gaylord introduced evidence that he had licensed other derivative works based on The Column, such as T-shirts, miniature replicas, and other collectibles, on a per-unit royalty basis. Noting the distinctive power of the Gaylord work as the only nationally recognized Korean War memorial, the court held that a per-unit royalty was a reasonable and justifiable method and the split was a “good economic deal” for the Postal Service which kept 90% of the revenues.

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The sculptor is pictured with small models of the soldiers he created for the Korean War Memorial. The soldiers on the National Mall are actually over 7’ tall.

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