IP Law Daily U.S. postage stamp could infringe sculptor’s copyrighted Statute of Liberty replica at Las Vegas hotel
Monday, July 24, 2017

U.S. postage stamp could infringe sculptor’s copyrighted Statute of Liberty replica at Las Vegas hotel

By Thomas Long, J.D.

A sculptor can go forward with claims against the U.S. government for infringing his copyright in a large replica of the Statue of Liberty installed on grounds of the New York, New York Hotel & Casino in Las Vegas, the Court of Federal Claims has decided. The U.S. Postal Service used a photograph showing the head of the sculptor’s work on a postage stamp, believing it to have been a picture of the original Statue of Liberty. The court rejected the government’s argument that its use of the image in question was excepted from infringement liability as a photograph of an architectural work located in a public place. The sculptor was not, however, entitled to summary judgment on the issue of liability because factual issues remained regarding the validity of his copyright and whether the government infringed it. In addition, the government’s fair use defense required a factual inquiry. Summary judgment motions by both parties were denied (Davidson v. U.S., July 18, 2017, Bruggink, E.).

Originality. The replica designed by sculptor Robert S. Davidson was constructed and installed on the hotel’s grounds in 1996, and the artist obtained a copyright registration for the work in 2013. Davidson contended that his intent in creating the work was not merely to copy the Statue of Liberty but to create a unique and original work. The replica’s face, according to Davidson, was intentionally not a perfect copy of the actual Statute of Liberty. There were factual questions as to whether those differences related to the copied elements, Davidson’s intent in the fabrication process, the amount of discretion afforded to Davidson in the design and the choice of materials, and whether any differences were dictated by necessity rather than artistic choice, the court said.

Fair use. Nor could it be determined on summary judgment whether the government’s reproduction of a photograph of the replica was fair use under 17 U.S.C. §107. The court noted that fair use required a fact-intensive inquiry, and each case was different. Davidson argued that the Postal Service sold millions of stamps using the image in question, which weighed in his favor. The government argued that two factors weighed in its favor because the replica clearly attempted to mimic the original Statue of Liberty, and the sale of the stamps would have a minimal potential for reducing Davidson’s ability to make further commercial use of the replica. Stating that weighing the factors was a factual inquiry—as was consideration of the remaining fair use factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole—the court declined to grant summary judgment in either party’s favor.

Pictorial representation of architectural work. The government argued that its use of the image on the postage stamp was protected by an exception set out in Section 120 of the Copyright Act, which provides that the copyright in an architectural work does not include the right to prevent the creation, display, or distribution of photographs of the work, if the building is located in or visible from a public place. According to the government, Davidson’s sculpture was part of the hotel. Although the sculpture was not connected to any of the hotel’s buildings, it was located on the hotel’s grounds, was built at the same time as the buildings, and was intended to enhance the hotel’s New York theme. However, the sculpture did not fit within the Act’s definition of "architectural work," in the court’s view. That definition referred to the design of a building, and the relevant regulations defined "building" as a "humanly habitable structure." The replica of the Statue of Liberty was a freestanding work of sculpture and was not part of the hotel’s facade or connected to it in any physical way. The statue served no functional purpose for the building. In the court’s view, deeming the statue to be one and the same as the hotel buildings was inconsistent with a common sense reading of the statute and regulations. Even if the replica were viewed by the public as a design element of the hotel, that did not strip Davidson’s work of its protection under the Copyright Act as a sculpture, the court said.

The case is No. 1:13-cv-00942-EGB.

Attorneys: James J. Pisanelli (Pisanelli Bice PLLC) for Robert S. Davidson. Scott David Bolden, U.S. Department of Justice, for the United States.

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