The new Lady Liberty First-Class stamp issued by the U.S. Postal Service.
Statue of Liberty, New York, Las Vegas. Photo by ADTeasdale, via Flickr.
Give me your tired, your poor, your copyright infringement lawsuits.
The Statue of Liberty is at the heart of a lawsuit brought against the United States Postal Service (USPS) by artist Robert S. Davidson, who charges that the government mistakenly used a photograph of his Las Vegas sculpture of Lady Liberty for a stamp without permission. The mail mishap and subsequent lawsuit raise questions about the very nature of originality.
The dispute is the product of a 2010 mix-up by the post office. Instead of a photograph of New York’s Statue of Liberty, a USPS employee overseeing the creation of a new “Forever” stamp accidentally selected a Getty image of Davidson’s statue, which has stood outside Las Vegas’s New York, New York Hotel & Casino since 1996.
The stamp was printed roughly 3.5 billion times before a collector noticed the mistake in 2011. While the USPS said the agency would “reexamine our processes” after being alerted to the confusion, they noted the stamp was hugely popular and even printed an additional 1.13 billion.
Everything might have been consigned to the dustbin of USPS snafus had the artist behind the Las Vegas statue not sued the government in 2013 for using his work. In July, a judge ruled the case will proceed to trial in September.
At issue is whether Davidson’s version of the Statue of Liberty is an original work, and therefore subject to copyright infringement protections, or a straightforward replica. The original Statue of Liberty, created over 130 years ago, is in the public domain, meaning it can be photographed and replicated freely by anyone. Identical replicas of public domain works do not receive copyright infringement protections, either.
Davidson claims his Las Vegas Lady Liberty was created to be intentionally different from the original. According to the artist’s complaint, the Vegas statue is “more ‘fresh-faced,’ ‘sultry’ and even ‘sexier’ than the original located in New York.”
Statue of Liberty, New York, NY. Photo by Ceslo Flores, via Flickr.
Davidson further claims that elements of the statue’s face stemmed not from the original but from “certain facial features of his close female relatives.” Changes include a “fuller chin; a rounded jawline and neck; a softer and wider mouth in relation to the nose; lifted corners of the mouth to create a friendlier expression.” A full page of the eight-page complaint lays out in painstaking detail the differences between the Las Vegas newcomer and the New York original.
Such changes mean those elements of the sculpture are copyrighted and their use by the USPS entitles him to damages, Davidson argues. The government has asserted the differences are too subtle to warrant legal protection.
In his ruling last month, Judge Eric G. Bruggink of the United States Court of Federal Claims, which hears lawsuits brought against the Federal government, rejected Davidson’s motion to end the case in his favor before trial. Judge Bruggink cited “disputed issues of fact” including the alleged differences between the two statues and questions of if those differences were the result of artistic choice or of necessity. In the same ruling, Judge Bruggink also rejected the government’s motion to dismiss the case. The government asserted that the sculpture was a part of the casino’s architecture, but the judge noted in his opinion that the Las Vegas Statue of Liberty is a freestanding, non-functioning sculpture, as opposed to a design element part of the facade or the building’s architecture.
In September, the judge will weigh the facts to decide if the Las Vegas statue is indeed sultrier than the original. Put another way, it will have to decide whether facial elements of the Las Vegas statue are indeed different from the original, and if they are original enough to be copyrightable.
The government has argued that even if the Las Vegas statue is copyrightable, its use on the stamp is permitted through a fair use defense. Determining whether something qualifies as fair use is is also typically fact-based inquiry. The originality of the copyrighted work, in this case the Las Vegas statue, is an important factor in determining fair use. The less original the copyright piece, the thinner the protections it enjoys.
Though the complaint doesn’t specify a request for damages, the Washington Post reported that a previous case brought against the USPS by the sculptor for the Korean War Memorial resulted in $685,000 in damages after the sculptures were used without permission for a stamp. The court also found the artist was entitled to 10% of sales of the stamps to collectors.
Lawyers and observers looking to discern some greater meaning from this case might look to the words of former New York mayor Ed Koch, who said of the USPS decision to print the stamp even after learning of their mixup: “It simply means the post office is doing a stupid thing.”
May 4–8, 2018, Park Avenue Armory