Court Rules Photo of Memorial Violates Copyright 426
WhatDoIKnow sends in a story about an appeals court ruling in a singular case that might have the effect of narrowing "fair use" rights for transformative uses of artworks. "The sculptor who designed the Korean War memorial [in Washington DC] brought suit against the Postal Service after a photograph of his work was used on a postage stamp. Though first ruled protected by 'fair use,' on appeal the court ruled in favor (PDF) of the sculptor, Frank Gaylord, now 85."
Re:isn't the memorial already in the public domain (Score:5, Informative)
from TFA:
"she went over all of the available documents and found that they expressly kept those [IP] rights with Gaylord"
So no the idiots at the Army Corps of Engineers who signed the contract for this didn't in fact get ownership of anything other than the physical sculpture.
Not elected (Score:5, Informative)
Judge Thomas C Wheeler was nominated in June 05 and confirmed in October 05 for a 15 year term. His prior experience was 10 years as a lawyer for corporate law firm DLA Piper.
This will get appealed again. (Score:5, Informative)
The underlying problem is that copyrights were improperly assigned to Gaylord in the first place. Being under contract to the govt, those copyrights should have been assigned to the govt. In fact the contracting officer has been and still is demanding that those improperly assigned copyrights be turned over. The court wasn't allowed to challenge the validity of those copyrights and had to take them at face value.
Re:Stupid bureaucrats (Score:5, Informative)
From the court decision, Mr. Gaylord was paid $775k by the United States for his part of the work, and the primary contractor (who hired Mr. Gaylord directly) was paid over $5M (p. 5 of dissent).
Personally, I'm rather confused as to how this case turned out this way. The dissent offers a very strong argument for why the government already has a license to use the artwork however it sees fit, and it also notes a federal law which should disqualify a claim against the government in this case. The US should at least try to get the CAFC to hear this case en banc, because it seems that the majority in this case overlooked some important details.
Re:Statutory Damages... (Score:4, Informative)
That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion).
No, it's a minimum award of $750 and a maximum of $30,000, assuming no willful infringement.
Statutory damages are per work, not per copy.
Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?
Complete non-sequitur. Is a $30,000 penalty for a corporation misusing someone else's property too high? Of course not. Is the same penalty too high for a kid who is pirating music for his iPod? Almost certainly.
Re:Statutory Damages... (Score:2, Informative)
17 million sales of $.37 stamps = 46 million or so stamps actually produced.
Statutory damages can run from $750-$30,000 per copy, assuming that it wasn't a willful infringement.
That's a minimum award of $34,500,000,000 (34.5 billion) and a maximum award of 1,380,000,000,000 (1.4 trillion). Plus attorney's fees, of course. Roughly last year's federal deficit not counting off-budget spending bills.
Would anyone here care to argue that statutory damages in the U.S. are not way out of proportion to the scope of the infringement?
I would care to argue that... Mainly because you're misquoting the statute. 17 USC 504(c)(1) says: "... the copyright owner may elect... an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $ 750 or more than $ 30,000 as the court considers just."
It's $750-$30k per work, not per copy. This was specifically changed in 1976 - from the original copyright act of 1790 through the many revisions until 1976, statutory damages were per copy... usually per sheet, even, although damages were much lower. But still, a 500 page book would be 500 separate sheets, at 50 cents per sheet in 1790, or $250 per copy of the book.
Anyways, this is a single work, so damages would be between $750 and $30k, or up to $150k if it was willful, but not the billion or trillion you posit.
Re:Fair Use (Score:4, Informative)
Fair use is determined by the four factor test and that list is not exhaustive, for example "timeshifting" which was vital to the Betamax case is not listed nor covered by any of the others. So the only one bastardizing the statutes here is you, by asserting that it can't be fair use since it's not on the list.
Re:The postal service should just use the photo (Score:2, Informative)
Re:Fair Use (Score:5, Informative)
I don't think you understand copyright law. A finding of fair use requires that the derivative work survive the "four factor test". Mere inclusion in the category of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is neither neccessary nor sufficient for a finding of "fair use".
The task is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994). [cornell.edu]
Re:isn't the memorial already in the public domain (Score:5, Informative)
USPS WAS operating in the green actually for most of the decade, up til 2007 when the increased gas prices really started to impact the bottom line. When you operate the largest vehicle fleet in the world, even a penny increase is going to be massively damaging..
http://www.usps.com/history/anrpt07/summary.htm [usps.com]
So yeah, it's fun to mock USPS, but it's not often warranted.
Re:A slap in the face to all American veterans. (Score:3, Informative)
Appeals court rulings are overturned frequently by supreme courts (google it) - if they hear the case (which the blatantly should). US postal service should be able to get there. I'm not worried but then again I'm not in the US. Why are there so many cases where there is a reversal is strange and can be infuriating.
Especially as the decision was 2 - 1 with a strong and well agued dissent.
Re:A slap in the face to all American veterans. (Score:5, Informative)
To a great extent it's because Federal appeals court judges are political appointees, more often than not chosen because of their partisan politics rather than any sort of legal knowledge. No experience as a lower-court judge is necessary, for that matter a number of them have been appointed after spending all of their post-Bar Exam years lobbying or politicking rather than practicing law.
Re:isn't the memorial already in the public domain (Score:3, Informative)
I think you're confusing product placement with copyright and approved uses.
You see very obvious brand names in movies and TV because they are sponsoring the movie. It's advantageous for them to have their products shown.
Don't think every couch, lamp, and article of clothing had a royalty paid for it's use. You could extend that idea to "character A walks through a door. He hangs his jacket on a hook." Consider every element in that shot. The clothes, the door, the carpet he was standing on, the hook. None of those manufacturers made any money except for the retail cost of their product.
If you see an iPhone in a movie, it's because Apple paid for it to be there. Otherwise, it would be a nondescript phone, probably held to the actors off-camera ear, or not even shown in an obvious manner other than the fact you knew the actor was talking on a cell phone.
But, sure as hell, some lawyer will grab onto a case, and make some money at it (one way or another). That's part of the American dream though. Sue someone with money, and win a fortune. I'm just happy I'm not one of them.
Re:Guess it was never ours (Score:2, Informative)
If it's physical, then I should not need permission to sketch it. The fact that you have it on display and that my eyes can see it is all the "permission" I need.
I swear this society is pretty screwed up if it is illegal to draw a picture.
While this was modded down, it does have a point. Now, IANAL, but a quick google found this [thephotoforum.com]:
You can take photos of almost anything in a public place. Buildings may be copyrighted but that applies to their design and photography does not violate the copyright of a building. It is not against copyright to take a photo of any architectural work or piece of art or sculpture in a permanent public place.
Re:A slap in the face to all American veterans. (Score:3, Informative)
Bouncing Betty.
http://en.wikipedia.org/wiki/Bounding_mine [wikipedia.org]
Re:isn't the memorial already in the public domain (Score:3, Informative)
"What about the rights of the person who created the ART of your event?"
They were properly covered by the money I got him in exchange for his services.
"They're also going to have a piss-poor eye, and will likely be late and unprofessional when it comes to delivering the images."
You are using the future tense. I remember you this was two years ago, the one I contracted had a good eye, was professional and came in time. I of course took my references.
"If you treat an artist like they're a tradesman, perhaps you don't really understand the scope of the service"
I fully understand the scope of the *service* and, yes, a wedding photographer is a tradesman no less than a lawyer or a milkman, I hired him for a service and as long as he is under contract the result of his work is my own. Maybe the photographer I hired is more professional than what you think since he had no problem understanding what I was hiring him for, professionally reaching a deal and professionally binding by it.