Copyright Law: Federal Circuit Upholds $540,000 in Royalties for USPS Copyright Infringement


Washington, D.C. – The United States Court of Appeals for the Federal Circuit affirmed a royalty award in Gaylord v. United States for copyright infringement committed by the United States Postal Service.

Frank Gaylord, a World War II veteran and renowned sculptor, created The Column, consisting of nineteen stainless steel statues depicting a squad of soldiers on patrol. This work, completed and dedicated in 1995, formed a central part of the Korean War Veterans Memorial located on the National Mall in Washington, D.C. For his efforts in creating the work, Gaylord was paid $775,000.

Shortly after the completion of the work, an amateur photographer named John Alli visited the Memorial during a heavy snowstorm and photographed The Column. In 2002, the United States Postal Service decided to issue a stamp to commemorate the upcoming fiftieth anniversary of the Korean War armistice. It settled on Alli’s photo of The Column for the stamp face and paid Alli a one-time fee for the right to use his photo. The Postal Service made no payment to Gaylord.

Gaylord sued for copyright infringement. The United States Court of Federal Claims acted as the trial court in the litigation. Twice prior to the instant appeal, an appeal was made to the Federal Circuit, first in 2010 and again in 2012. In Gaylord I, the Federal Circuit held that the government was liable to Gaylord for copyright infringement. Upon remand, the Court of Federal Claims awarded Gaylord a total of $5,000 to compensate for the infringement of his copyright. This award was vacated by the Federal Circuit in Gaylord II and the lawsuit remanded with instructions to “determine the fair market value of a license for Mr. Gaylord’s work based on a hypothetical negotiation with the government.”

Upon remand, the trial court split the calculations of damages for the infringement into three categories: (1) stamps used to send mail; (2) commercial merchandise featuring an image of the stamp; and (3) unused stamps purchased by collectors. The parties agreed that no damages would be paid for stamps used to send mail and that a royalty of 10% of revenues would be appropriate for commercial merchandise featuring the copyrighted work.

The only disputed issue was the appropriate measure of copyright infringement damages for the stamps purchased by collectors. The lower court determined that the Postal Service received $5.4 million in revenue, which was deemed “almost pure profit,” from these sales. It then found that an appropriate copyright royalty would be 10%, or $540,000.

At issue in this latest appeal, Gaylord III, is whether this royalty was appropriate. The Federal Circuit applied the “hypothetical negotiation” analysis in reviewing the Court of Federal Claims’ award to Gaylord, stating that “actual damages for copyright infringement may be based on a reasonable royalty representing the fair market value of a license covering the defendant’s use.” Determining that “fair market value,” in turn could be done employing a valuation tool used in the context of patent infringement litigation: a hypothetical negotiation that would determine “the reasonable license fee on which a willing buyer and a willing seller would have agreed for the use taken by the infringer.”

The Federal Circuit held that the lower court neither committed clear error nor abused its discretion in arriving at a 10% royalty rate affirmed the award of $540,000.

The case was assigned to Circuit Judges Moore, Reyna, and Taranto and assigned Case No. 2015-2050.


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