February 25, 2010 5:47 PM

An 85-Year-Old Sculptor vs. The Government

Posted by Zach Lowe

Frank Gaylord, now 85, won a government-sponsored contest to sculpt a memorial to Korean War veterans in Washington, D.C. all the way back in 1990. The memorial he eventually built, which you can see here, drew the attention of John Alli, a retired U.S. Marine and an amateur photographer. In 1995, Alli took hundreds of photographs of the memorial on a snowy day and eventually produced a single, haunting photo. In 2002, the federal government paid Alli $1,500 to use his photo as the basis for a 37-cent postage stamp. 

Got all that? In 12 years, we went from sculpture to photo to stamp, and Gaylord, who served as an Army paratrooper in World War II, got essentially nothing along the way, court records show. In 2006, Gaylord, living then as now in Vermont, walked into the law offices of Primmer Piper Eggleston & Kramer in Burlington, Vt., and inquired about suing the government for copyright infringement. Partners remembered that one of their law school classmates, Heidi Harvey, worked for the IP powerhouse Fish & Richardson in Boston, and they suggested Gaylord work with her.

Harvey says she was "skeptical" about Gaylord's case. She suspected, she says, that in signing documents or communicating with the U.S. Army Corps of Engineers (the memorial's sponsor), Gaylord had signed away his IP rights to the government. "It's just so difficult for artists to navigate through that process," she says. But she went over all of the available documents and found that they expressly kept those rights with Gaylord. "Now I felt we were good to go," she says. (Harvey credits Ann Garfinkle of the Maryland-based firm Whiteford Taylor Preston; she advised Gaylord on those initial agreements, Harvey says. Garfinkle did not return a call seeking comment. Gaylord now lives in a retirement home and could not be reached.)

Harvey took the case pro bono and sued the government in the Court of Federal Claims in 2006. The U.S. Postal Service raised more than $17 million from sales of the stamp--including about $5.4 million in sales to collectors--before the agency retired it. Gaylord, the suit argued, deserved a piece of that money in damages.

The government disagreed on a number of grounds, including that Alli's photograph and its transformation into a stamp amounted to fair use, court records show. They also claimed that the memorial constituted architecture, and thus was not subject to the usual copyright protections, and that Gaylord wasn't the sole author of the project since he had taken artistic advice from an architectural firm and the government. (One government official, for instance, suggested Gaylord sculpt the soldiers' uniforms so that it would appear the weather was more windy, court records show.) The court ruled against every prong of the government's argument but one: the fair use claim. On that, Gaylord lost, and that loss quashed his chances for damages. 

But he appealed to the U.S. Court of Appeals for Federal the Federal Circuit in 2008, and earlier today that court ruled, 2-1, in Gaylord's favor. "I just finished jumping up and down," Harvey says. John Triano, Gaylord's son-in-law, says he and his family were visiting Gaylord when he received an e-mail about the ruling today. "We are just relieved," Triano says. "It has taken a long time." He thanked Fish for taking the case pro bono, though Harvey says there was a contingency fee agreement in the event of a favorable outcome. But she says the decision about whether to ask Gaylord's family for any money has not yet been made, and is up to Fish's management. 

Also involved in the case representing amici on the goverment's side: Anthony Falzone of Stanford University's Fair Use Project and Bingham McCutchen. Falzone says the majority in today's ruling "missed the forest for the trees" by overlooking the fact that the photograph of Gaylord's work is, he says, clearly transformative and should be protected by fair use. Falzone has represented Shepard Fairey, the artist who claims his famous "Obama Hope"  poster based on an Associated Press photograph also should be protected under the fair use doctrine. (The AP, represented by Kirkland & Ellis, disagrees.) While Falzone says Fairey's poster is "profoundly more transformative" than the government's postage stamp, he argues that the stamp nonetheless is different enough from the memorial to qualify. Falzone says the court's view that a new work must make some sort of criticism or commentary to fall under fair use sets a dangerous precedent.

The appeals court remanded the case for a hearing on damages. The government could petition the U.S. Supreme Court for review.

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