Turns out that’s not the Statute of Liberty – just a statute of liberty.
The stamp became the subject of a bizarre copyright infringement battle this week when Las Vegas-based sculptor, Robert S. Davidson, filed a lawsuit against the United States Postal Service. The New York-New York casino commissioned Davidson to design a Lady Liberty to grace its imitative skyline, but Davidson never visited New York during the design process. The result, Davidson alleges, is a “softer, more feminine, and realistic silhouette” for Lady Liberty, including a “fuller chin, a friendlier expression and pronounced cupid’s bow shape of the upper lip.” Those changes resulted in a “‘fresh-faced,’ ‘sultry’ and ‘even sexier” rendition of the statute.
Davidson claims that his changes ”brought a new face to the iconic statue.” That must be what appealed to USPS when looking through a Getty Images lineup: USPS wanted a “distinctive and different” version of the iconic statute – what better than a version that was not the statute at all?
USPS apparently assumed the rendition they chose was the New York original, which is in the public domain.
A few folks have speculated that Section 120 of the Copyright Act should allow USPS to use a picture of this publicly visible work, but Section 120 only applies to representations – like photographs or paintings – of architectural works. (It’s the reason artists can sell pictures of the New York City skyline without being sued by the designers of the Chrystler Building.) Sculptures, however, are not “architectural works” for purposes of Section 120.
And just in case your mind is wandering to Section 107, more commonly known as “fair use,” Davidson has some strong precedent on his side.
USPS was bench-slapped earlier this year for using the Korean War Memorial on a commemorative stamp without permission from its creator, Frank Gaylord. The Federal Circuit reversed the lower court’s finding of fair use, noting that “allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case.”