Court finds transformative “Fair Use” in Korean War Memorial stamp.

I get a lot of fair use questions, and I have a hard time explaining the concept in anything less than a 45 minute conversation. I find it to be a fascinating concept: in the often black and white world of copyright infringement, fair use is a gray fog that both obscures the traditional boundaries of copyright and reveals contours that aren’t otherwise apparent.

There are some basic rules of thumb: I often tell my clients that they should think about whether their use of a particular work (without permission) is merely substituting someone else’s creative expression for their own. For example, if you use a photograph to illustrate a blog post, ask yourself whether you could achieve a comparable result by going out and taking (or buying) your own photograph or whether your use of that particular photograph integral to that particular article. Or to put it another way, are you using the photograph to illustrate the news, or because the photo is the news? (Just to be clear, the second situation is pretty rare).

But rough rules have their limits, and fair use is a big topic that takes some experience to navigate. Therefore I think the best way to explain fair use is to discuss actual cases and try to draw parallels to similar situations. One such case was decided last week involving a U.S. postage stamp depicting a sculpture at the Korean War Memorial (the case is Gaylord v. The United States). Note that this is a district court case in the United States Court of Federal Claims, and there’s a chance that the ruling could be reversed on appeal.

Before I discuss the case, a quick primer on fair use. Fair use is an affirmative defense to copyright infringement. In other words, the person claiming fair use is admitting that he infringed the copyright, but is asking the court to excuse the infringement on what are effectively public policy grounds.

As I’ve mentioned before, copyright law (along with patent law) is mandated in the Constitution, which states copyright’s purpose as “to promote the progress of science and useful arts.” The Constitution directs Congress to grant authors a limited monopoly to exploit their works, but only to the extent that the monopoly promotes the aforementioned progress. The fair use doctrine serves as a check on the monopoly, allowing others to use the work when the promotion of progress so dictates.

The basic test for fair use is part of the copyright statute and is found at 17 USC 107. It directs courts to consider four factors in determining whether a particular copyright infringement is excused by 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.

In discussing fair use cases, courts typically assign a weight to each of the four factors on a sliding scale, and ultimately determine whether the overall scale is tipped in favor of fair use. Depending on the court and the circumstances, however, judges often find one of the four tests to be particularly disposative and can often find fair use on that factor alone (although they usually give at least some discussion of the other factors).

In the recent Gaylord case, the court addressed whether the U.S. Postal Service was protected by a fair use defense when it issued a stamp featuring sculptor Frank C. Gaylord’s artwork from the Korean War Memorial in Washington DC. The court had no trouble finding that the sculpture, titled “The Column,” was protected by copyright law and that the stamp technically infringed on Gaylord’s copyright.

After weighing the four factors, the court focused its attention on the first factor and decided in favor of fair use based primarily on what it found to be the “transformative” nature of the use of the sculpture on the stamp.

In discussing the “purpose and character of the [infringing] use”, the court noted that its job was to “evaluate whether the accused work ‘merely supersede[s]‘ the original work, or whether it ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’” (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164 (1994).) The court also saw its job as to “consider whether the new work ‘adds value to the original,’ by incorporating ‘new information, new aesthetics, new insights and understanding.’” (citing Blanch v. Koons, 467 F.3d 244, 251-52 (2d Cir., 2006).)

The court emphatically found that the stamp transformed the sculpture into a completely new work. It categorized the sculpture as “a three-dimensional sculptural snapshot of a group of soldiers on an undefined mission during the Korean War, captured as a single moment in time.” The court then went on to characterize the photograph as having

“transformed this expression and message, creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings. . . . The viewer experiences a feeling of stepping into the photograph, being in Korea with the soldiers, under the freezing conditions that many veterans experienced. . . . [The photographer] took hundreds of pictures of ‘The Column’ before he achieved this expression, experimenting with angles, exposures, focal lengths, lighting conditions, as well as the time of year and day . . . [and] also achieved his vision using various photographic effects and equipment [such as] using a portrait lens and a tripod, using slide film, and choosing glossy prints.”

Regarding the second factor, the court noted that both the sculpture and the stamp were creative works which weighs against a finding of fair use. (If the stamp were educational or editorial, the court may have felt differently). But the court applied little weight to this factor, stating that “the second fair use factor carrie[s] limited weight . . . because the defendant used the artist’s work in a transformative manner, not to exploit the work’s creative virtues, but rather to comment on the work’s social and aesthetic meaning.” (Citing Blanch v. Koons).

For the third factor, the court found that the stamp copied 14 of the 19 figures from the sculpture and recognized that copying of this significant a portion of the original work would normally weigh against fair use. Here too, however, the court mitigated its finding by saying that that it should analyze not only “the quantity of the materials used, but … their quality and importance too.” (Citing Campbell v. Acuff-Rose Music). Taking this into account, the court found that by using “snow covering the statues as a tool to obscure the statues and create a heightened surrealistic effect” and “sharply reducing the color of the statues through controlled lighting,” the Postal Service effectively “lessen[ed] the quality and importance of [the statute] in its stamp.” Therefore, although both the second and third factor weighed against fair use, their overall weight was minimal.

Finally, the court found that the stamp had no impact upon the market for either the statue itself or for any derivative works of the statue. It acknowledged that courts need “to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market’ for the original.” (Citing Campbell v. Acuff-Rose Music). But it also stated that “when a court finds that the allegedly infringing work is transformative under the first factor, market harm cannot be presumed.” Therefore the court looked for actual market harm.

It found that there was no market to harm because Gaylord had made very few sales of figurines of his statues and because he had never attempted to sell things like “photographs, postcards, magnets, or keychains” of the work. The court also refused to find possible future harm because “the Stamp is an inadequate substitute for ‘The Column’” and the “one by one-and-a-half inch stamps would be adequate commercial substitutes for future [derivative] products sold by Mr. Gaylord.” It therefore found that the fourth factor weighed in favor of a “fair use” finding.

As you can see, by emphasizing the “transformative nature” of the infringing work, the court effectively minimized all of the other factors in the fair use test. And as you can also see, the finding of transformation is highly subjective. It is easy to see both sides of this issue, and depending on whether you’re sympathetic to the artist or to the infringer you may either herald or decry the opinion. Personally I think that this situation is a close call; the court justified its finding of fair use reasonably well, but I could just as easily see the decision going a different way with a different judge.

What does all of this mean for you as you try to navigate fair use? First, remember that litigation is expensive. Even though the Postal Service prevailed, both parties expended significant time and resources in bringing the suit and pursuing it through to a judgment. I don’t know whether the Post Office tried to buy a license to use the sculpture before printing the stamp, but my guess is that it would have been cheaper to do so than to pay attorneys to fight this battle in court. Most people are better off steering clear of infringement claims whenever possible, even where fair use may be involved. If you follow the advice in my previous post to get proper permission to use third party works, you’ll largely avoid such disputes and therefore keep your legal costs down.

But there are times where promoting the progress of the useful arts demands that you use other people’s works without permission. As this case shows, however, fair use is complicated and judges can be fickle. If you feel you absolutely need to use someone else’s work without permission, you should talk to a lawyer to understand how much risk you are taking on.

Disclaimer: This article may not be current, accurate, or complete at the time you read it. Furthermore, the article’s content should be construed as legal information and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney, and by reading this article you have not entered into an attorney-client relationship with its author.

 

---