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An 85-Year-Old Sculptor vs. The Government

Publication Date: 
February 25, 2010
The AmLaw Daily
Zach Lowe
Anthony Falzone, executive director of the Fair Use Project, is quoted on whether a photograph of the Korean War memorial sculpted by Frank Gaylord constitutes fair use or copyright infringement:

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.


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.