Last year, we wrote about the appeal in a case involving a US postage stamp which was based on a photograph of the US’s Korean War Memorial in Washington DC. You can see the sculpture and the stamp below:
There were a variety of issues involved in the case, including who actually owned the copyright, but in the end, the interesting question is whether or not this was fair use. The lower court had ruled that this was clearly quite transformative, different in nature, and did not harm the commercial value of the original work (which even the sculptor admitted). Thus it was fair use. To us, and many other experts in fair use, it seemed hard to question that logic, but when it comes to copyright, you can always be surprised by how judges interpret the law.
The Federal Circuit has ruled on the appeal and stunningly decided that this isn’t fair use, claiming that it’s not, in fact, transformative. I’m somewhat amazed — as is law professor Peter Friedman in the post linked here. The two works are quite clearly extremely different, but the court felt that since they both were designed to honor soldiers killed in the Korean War, it couldn’t be seen as transformative. The fact that the photographer took hundreds of images before settling on this one apparently didn’t matter. On top of that, the fact that the snow totally changes the character of the image was dismissed by the court as being just “nature’s decision.” Update: That “nature’s decision” line was really bugging me, and Friedman has updated his post to show it’s bugging him too, so I wanted to write a bit more. If “nature’s decision” makes something non-copyrightable, then it can be argued that all nature photography is not covered by copyright — which goes against pretty much every precedent out there. It’s hard to see how CAFC can make this argument.
This really seems to mess of the idea of fair use. And, as the post mentions, how in the world can the government spend public money on a memorial and not be the ones that hold any copyright on the memorial?
That is messed up.