U.S. Postal Service Forced to Pay Royalty Reflecting Market Value for Infringing The Column Copyright

When the U.S. Postal Service decided to issue a stamp depicting The Column, the focal point of the Korean War Veterans’ Memorial in Washington, D.C., it licensed the photograph from the photographer, but neglected to obtain a license from the creator of The Column, sculptor Frank Gaylord.  The Column is comprised of nineteen stainless steel sculptures, symbolizing a platoon of soldiers.  Gaylord sued the Postal Service for copyright infringement in 2006.  In 2010, the Federal Circuit Court of Appeals ruled that Gaylord owned the copyright to The Column, that the Postal Service was liable for infringement and remanded the case to the Court of Federal Claims to determine the damages. 

On remand, the Court of Federal Claims awarded Gaylord a one-time royalty of $5,000, rejecting both Gaylord’s claim of a 10% royalty on revenues of $30.2 million allegedly produced by the Postal Service’s infringing use and Gaylord’s claim for prejudgment interest.  The Court of Federal Claims used a “zone of reasonableness” analysis in reaching its decision.  It determined that since the Postal Service paid the photographer a $1,500 royalty and since the Postal Service’s evidence showed that the Postal Service had never paid more for a license of an existing image to put on a stamp than $5,000, the zone of reasonableness was between $1,500 and $5,000.  The Federal Circuit Court of Appeals again reversed and remanded.

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