Frank Gaylord sued the US government as the result of the Postal Service’s decision to issue a 37-cent stamp depicting a portion of the Korean War Memorial (“Memorial”). The Memorial was created by Mr. Gaylord as part of a competition to select the sculptor for the Memorial. A photo of the Memorial is found here

The Postal Service created a stamp based upon the Memorial (found below), and Mr. Gaylord sued for copyright infringement.

See picture.

The Federal Circuit court recently found that the stamp was not a fair use because it did not transform the character of Memorial. Although the stamp altered the appearance of the Memorial by adding snow and muting the color, the court ultimately determined that these alterations did not impart a different character to the work. Additionally, the court held that the U.S. government did not have rights to the Memorial because there was no agreement between the U.S. government and Mr. Gaylord sharing ownership of the sculpture, further stating that the sculpture was a “work made for hire,” and there was no evidence that Mr. Gaylord created the Memorial in the service of the United States or using government time, material, or facilities.

TIP: When purchasing or commissioning photographs and images to include in your advertisements or products, be sure to have a written transfer of ownership.