Oops! They did it again!
by Intellectual Property Attorney Bill Honaker, the IP Guy
Don’t let your business get caught up in a copyright lawsuit. They’re messy and expensive. And it could happen to you.
Copyrights are everywhere in business; for example, copyrights are on your website, product pictures and descriptions, annual reports, brochures, software, and on and on. Keep in mind, a copyright is created any time you express an idea in tangible form, so they are everywhere.
In June, 2018, the US Court of Federal Claims ruled against the USPS. It’s a fun story, unless you’re a taxpayer. It also highlights the complexity of copyright laws. They certainly can be “a riddle, wrapped in a mystery, inside an enigma” – Winston Churchill. It’s also a reminder, you should learn from your mistakes, “once bitten, twice shy” (Ian Hunter).
You remember the Korean War Memorial postage stamp. The stamp was released on July 27, 2003. Almost 48 million of these stamps were sold.
The Post Office infringed the copyright on this stamp and should have learned from that mistake.
The Korean War memorial was dedicated on July 27, 1995. Frank Gaylord sculpted the 19 stainless steel statues of soldiers marching in their ponchos. In January 1996, John Alli took a photograph of the Memorial during a snowstorm. He called it, “Real Life.”
Mr. Alli licensed this photograph to the USPS for $1,500.00. But, the USPS didn’t get permission from Mr. Gaylord, the sculptor of the monument. Mr. Gaylord sued, alleging infringement of his copyright. The Court ordered the USPS to pay Mr. Gaylord $684,844.94.
As the saying goes, “Fool me once, shame on you, fool me twice, shame on me.” The Post Office was about to be fooled again. Shame on them.
In 2008, the USPS began work on another Forever stamp: the Lady Liberty.
The Post Office chose a photograph taken by Raimund Linke. The USPS paid $1,500.00 for a license to use the photo. The Lady Liberty stamp was released in December 2010. Is this sounding familiar?
In fairness to the USPS, they thought the photo was of the Statue of Liberty in New York. Any copyright on that statue expired long ago. But, the picture that Linke took was
actually of the statue at the New York, New York Hotel in Las Vegas. OOPS!
The Las Vegas Statue of Liberty was created by Robert S. Davidson. Mr. Davidson was a famous sculptor of large works. His first was the “Sphinx” at the Luxor Hotel. Mr. Davidson completed his Las Vegas Lady Liberty on October 4, 1996.
He thought that his statue needed to be different than the New York Lady Liberty, “More modern, a little more contemporary face, definitely more feminine, just something that I thought was more appropriate
for Las Vegas.” He said that he looked for guidance at a picture of his mother-in-law, and that her face was a large influence on the final form of his Lady Liberty.
In November 2013, Mr. Davidson sued the USPS for copyright infringement of his statue. On June 29, 2018, the Court of Claims awarded Mr. Davidson $3,554,946.95. OOPS, they did it again.
Copyrights are tricky. There can be copyrights within copyrights. Just using an image can be risky. Copying an image from the Internet is always a risk. Check it out and make sure that you have license to the copyrights, and any internal copyrights, that might be in the image. Don’t just assume. It’s is best to seek legal advice.
Damages for copyright infringement can be very high. Damages can be your profit, or the copyright owner’s loss. Or, the copyright owner can elect statutory damages, which are $750 to $30,000 per infringement, and up to
$150,000 for willful infringement. The court is also encouraged to award attorney fees and costs to the prevailing
Word to the wise, be very careful when it comes to copyrights, they are everywhere and can be very costly.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.