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Fair Use Ruling Overturned on Appeal
Posted by
John E Grant
on February 26, 2010
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Last year I wrote an article about Gaylord v. U.S., a case involving a U.S. postal stamp that incorporated a photograph of a sculpture from the Korean War Memorial in Washington D.C. The sculptor (Frank Gaylord) sued for copyright infringement and initially lost with the trial court ruling that the stamp's depiction of the sculpture constituted transformative fair use and was therefore allowed under copyright law. Today a federal appeals court majority held that the stamp was not a fair use of the sculpture and remanded the case to the trial court for an assessment of damages. Records show that the government grossed over $17 Million on sales of the stamp, so damages could be substantial.
"The Column" Sculpture at the Korean War Memorial
To review fair use, courts analyze four factors on a case by case basis:
(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.
I wrote a thorough analysis of the lower court ruling in my earlier article, but the opinion largely flowed from the trial judge's finding that the photograph, as shown in the stamp, was highly transformative of the sculpture. The trial judge focused his analysis on the artistic choices of the photographer, emphasizing that transformation was achieved because the photographer "experiment[ed] 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." Because he found that the "character" of the use was transformative under the first factor, the trial judge weighed that factor strongly in favor of a fair use finding and allowed it to color his determination of the other factors as well.
In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge was wrong to focus on the transformative aspects of the photograph. Instead, it held that it must analyze the purpose and character of the stamp. The appellate majority then found that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean War veterans. It further held that the stamp did not reflect any of the typical purposes of fair use: commentary, criticism, news reporting, teaching, scholarship, and research. Finally, the majority held that although the stamp altered the appearance of the sculpture, it attributed the alterations to mother nature, not the photographer and said that "nature's decision to snow cannot deprive Mr. Gaylord of an otherwise valid right" to his copyright. Once it threw out the lower court's finding of transformation, the majority easily swung the next two fair use factors in favor of the sculptor before acknowledging that lack of market harm favored a fair use finding. The appellate majority ultimately held that "even though the stamp did not harm the market for derivative works [of the sculpture], allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case."
At first blush, this ruling seems to be a tremendous blow to the concept of fair use. In an era where copyright laws seem to be growing stronger and an international copyright treaty is being negotiated in secret, fair use plays a critical role in protecting the constitutional mandate that copyright protection "promote the progress of science and useful arts."
A closer look, however, reveals the limits of the appellate ruling. By shifting the focus of judicial inquiry from the photograph to the stamp, and therefore from the photographer to the U.S. Government, the court limits its holding to similarly situated defendants. Rather than implicating the photographer's right to take or even market the photo, the decision re-emphasizes the need for commercial end-users to obtain proper releases. And while it is impossible to know what external influences might have affected the majority, its shift of focus set up a David and Goliath story where human nature favors the little guy. Indeed, the money involved seems to have played a significant role: the court was careful to contrast Gaylord's work on the memorial with the $17 million the government grossed from the stamp.
Unfortunately, the ruling is likely to have a chilling effect on creative expression that incorporates the work of others. Many artists already tend to stay far from the blurry line between allowed and infringing use, but progress of the useful arts requires bolder action. Whenever possible, it is undeniably a good idea to get permission to use someone else's creative expression. But if permission isn't attainable, check with someone who truly understands fair use case law to assess your level of risk.
The case is Gaylord v. U.S., -- F 3d --, 2010 WL 653272, (Ct. Fed. App. 2010). The full text opinion is available from Technasauruslex.
Update: Professor Peter Friedman has a thorough analysis of the possible fair use implications of the case for photographers at Geniocity.com.