The sculptor of the Korean War Veterans Memorial is entitled to nearly $685,000 in damages from the U.S. Postal Service's unauthorized use of his copyrighted design on a stamp.
"The Court bases this conclusion on a finding that a 10 percent running royalty accurately captures the fair market value of a license to Mr. Gaylord’s copyright," Judge Thomas Wheeler wrote for the U.S. Court of Federal Claims.
Friday’s ruling in Gaylord v. U.S. ruling followed a precedent-setting decision by the U.S. Court of Appeals for the Federal Circuit that Gaylord deserved to be compensated based on the market value of a license to his design. That ruling in May 2012 resolved a case of first impression about copyright damages in a lawsuit against the government.
Called the "The Column," the statuary stands on the National Mall and includes 19 soldiers sculpted in stainless steel. The Postal Service sold nearly 48 million of the stamps between July 2003 and March 2005.
The claims court awarded Gaylord 10 percent of the Postal Service’s estimated $5.4 million profit on stamps bought by collectors, or $540.000; 10 percent of the roughly $330,000 in revenue, or $33,000, from retail goods bearing the image; and nearly $112,000 in prejudgment interest.
Gaylord did not seek damages for stamps used to send mail. The Federal Circuit noted the difficultly in determining how many stamps sold to consumers who wanted that image, not who merely needed stamps.
Heidi Harvey, of counsel in the Boston office of Fish & Richardson, said the firm took Gaylord’s case as a pro bono-contingency hybrid—pro bono thus far, with a possible contingent payment. "In the dark days of the case, we had several uphill battles. We said to the client, ‘We’re in this for the long run—it’s for the principle,’ " Harvey said.
The Postal Service "respectfully disagrees" with the court’s "unprecedented royalty on postage stamp sales," spokesman Mark Saunders said. The Postal Service and the Justice Department, which argued its case, are considering whether to seek further appellate review, he said.
Gaylord’s legal battle dates to 2006. The Federal Circuit in 2010 held the Postal Service liable for infringing stamps and retail goods bearing the image. The next year, the claims court awarded Gaylord $5,000 in damages, then the highest infringement verdict to date against the Postal Service over use of an image for a stamp.
Gaylord appealed, and the Federal Circuit then ordered the federal claims court to calculate the fair market value of the Postal Service’s use of the infringing image.
Sheri Qualters can be contacted at firstname.lastname@example.org.