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.”