Korea memorial sculptor wins copyright case

Dan D’Ambrosio | USA TODAY

BURLINGTON, Vt. -- A Vermont sculptor who sued the U.S. Postal Service for copyright infringement, has won a historic settlement of nearly $685,000.

The case involved the printing of stamps with an image of the soldiers Frank Gaylord, of Barre, Vt., sculpted for the Korean War Veterans Memorial in Washington, D.C.

The Postal Service said Friday it "respectfully disagrees" with the U.S. Court of Federal Claims' damages decision and that, together with the Department of Justice, it is considering whether to appeal.

The largest settlement the Postal Service previously paid for any image on a stamp was $5,000.

The Postal Service originally did not offer Gaylord any compensation, and in 2008 the Court of Federal Claims ruled in the Postal Service's favor, saying its use of a photograph taken of the memorial during winter by a retired Marine fell under the doctrine of "fair use," exempting it from copyright protection.

In 2010, Gaylord's attorney Heidi Harvey of the Boston law firm Fish & Richardson won a reversal of that decision in the Court of Appeals for the Federal Circuit.

On Friday, the Court of Federal Claims — directed by the Court of Appeals to "determine the proper amount of damages due Plaintiff Frank Gaylord" — settled on $684,844.

"God Bless America," Harvey said simply in an email responding to the judgment.

Harvey added that she was "very pleased" that Gaylord had been "vindicated in his request for just compensation for the Postal Service's infringement."

Gaylord spent five years sculpting the 19 soldiers known as The Column. The result was a war memorial that many feel is the most compelling on the National Mall. He was paid $775,000 by the government for the statues but only netted about $200,000 after expenses, according to court testimony.

Gaylord, 88, has waited a long time for this week's settlement, filing his lawsuit against the Postal Service seven years ago. Gaylord also sued the former Marine, John Alli, who took the photo that the Postal Service used on its stamp in 2003, commemorating the 50th anniversary of the war. Alli was paid $1,500 by the Postal Service for the use of his photo.

Gaylord settled quickly and amicably with Alli, who agreed to pay Gaylord a 10 percent royalty on any further sales of the image.

The Court of Federal Claims used the same 10 percent "running royalty" to determine the fair market value of Gaylord's copyright at nearly $685,000. The bulk of Gaylord's award came from the court's determination that the Postal Service collected an estimated $5.4 million for stamps purchased by collectors, entitling Gaylord to $540,000.

Heidi Harvey said the royalty on sales of stamps to collectors was "entirely consistent" with Gaylord's licensing practices.

"We feel the Postal Service should have been, through this entire dispute, willing and able to share a small percentage of those sales with Mr. Gaylord," Harvey said.

The balance of Gaylord's award came from royalties on merchandise sales and prejudgment interest.

D'Ambrosio also reports for the Burlington (Vt.) Free Press