Stamps have value: monetary value to send mail, monetary value to collectors, and aesthetic value as they are pieces of art. Combine government agencies, investment speculators, and artists together and it's the perfect situation for copyright lawsuits.
The standard case of stamp copyright infringement is a postal agency prints a stamp without asking permission of the person who owns photograph. The copyright owner of the photo then sues the postal agency and receives a settlement.
Photos of sculptures without the owner's permission are just like reproductions of photos without the owner's permission. It's an unauthorized reproduction or derivative and violates the copyright.
Stamps of sculptures raise the question of (1) does someone own rights to the sculpture and (2) is that photo and subsequent stamp printing "fair use." If someone still owns rights in the sculpture, then the Postal Office needs permission from the person who created the sculpture. If someone still owns rights in the photo, then the Postal Office needs permission from the person who took the photo. It's rare both of these (photo and sculpture) are in the public domain, but could occur if the photo is especially old or the artist gave up their rights.
Rarely does the Postal Service's use fall under the "fair use" exception as stamps are valuable and a government agency violating their citizens' copyrights is undemocratic.
- USA Case Study
- Mali Case Study
- Future of Sculpture Stamps?
Case Study - United States of America
Frank Gaylord sculpted the Korean War Veterans Memorial, which was installed in 1995 on the National Mall in Washington, DC. In 1996, John Alli took a photo of the statues. Alli then sold his photo to the U.S. Postal Service. The USPS released the stamp in 2002 to commemorate the 50th anniversary of the Korean War.
Gaylord successfully sued Alli and the U.S. Postal Service for copyright infringement.
Since the U.S. Department of Interior didn't purchase Gaylord's copyright in the sculptures when they commissioned him to build the sculptures, Gaylord still holds rights in the sculptures. A photo of a protected work is a reproduction or derivative, thus Gaylord has some claim to Alli's photo. Gaylord doesn't have 100% claim to Alli's photo. Alli's photo has originality, capturing the statues in snow with unique framing; but there are no additional elements beyond nature and the sculptures. The parties settled for Gaylord receiving a 10% royalty. This percentage was used to calculate damages against the USPS.
Since the USPS engaged in distributing this derivative, they were also held liable for copyright infringement of the underlying work. The court did not find the government's use as "fair use" since they used the entire photo which shows the entire sculpture, and they used the photo for monetary purpose. The added language "Korean War Veterans Memorial" emphasizes that the stamp shows Frank Gaylord's statue. The USPS also tried the argument that a private citizen couldn't sue the government for violating their trademark. In a win for checks-and-balances, the Federal Circuit did find the USPS liable for damages for infringing a citizen's copyright. Just because the Postal Service provides an essential service doesn't mean they're exempt from copyright law.
Gaylord v. United States, 595 F.3d 1364 (2010) is the largest stamp copyright case in the USA, with damages awarded around $540,000.
Case Study - Republic of Mali
Many countries issue a large number of stamps each year with the express goal of raising money by selling the stamps to foreign collectors. The volume of stamps is way more than ever is postally used in the countries themselves. Among the absurdities created by this practice is countries issuing stamps with images or themes than have nothing to do with that country.
The Republic of Mali issued a set of "ancient art" stamps in 1994, where none of the art was in Mali, created by Malians, or was about Mali. The stamps included a photo of the petroglyphs near Tanumshede, Bohuslän, Sweden, which were declared a World Heritage Site by UNESCO in 1994. The Tanum petroglyphs were created during the Nordic Bronze Age and are painted red to prevent the growth of destructive lichen (UNESCO). The rock sculptures depict vikings and their boats. The Republic of Mali is landlocked.
Clearly, none of the sculptors from the art featured in the 1994 Collection were alive in the last century. The question is did the Postal Service of the Republic of Mali get permission from the photographers?
The "Gravures Rupestres de Tanum" stamp appears to be digitally altered.
So not only is there (1) an ethical question of whether it's right to purchase a stamp where the photographer is not getting paid, there's the ethical question of (2) is it right to purchase a digitally altered photo of a UNESCO heritage site.
Stamp: Petroglyphs, Tanum (Mali) (Ancient Art) Mi:ML 1263,Sn:ML 629,Yt:ML 643
Future of Sculpture Stamps?
The USPS will still still issue stamps of sculptures and we will still get court cases.
One of the most well known US Postal Service stamps, the LOVE stamp issued in 1973, is based on Robert Indiana's LOVE statue. After Indiana died in 2018, his estate, former manager, and galleries sued each other over the control of the copyright of LOVE. The USPS is not a party to that court case, but it's a good example that even the best internal policy can't prevent all copyright lawsuits. Good internal policy just decreases the risk.
Back when the U.S. Postal Service had a Customized Postage program (~2012 to 2020), someone could upload a photo of a Jeff Koons statue and then ship the letter through the USPS with Koons getting 0% of the proceeds. There's a good reason they shut down the program, as it allowed consumers to print stamps with art they do not have the right to use. The USPS was also concerned with the program being used to print stamps with politically or religiously offensive matter. If that program had been allowed to proceed, we would have gotten a Supreme Court case about whether postage stamps are a form of free speech.
While we may never get Justice Alito pontificating about the importance of stamps as instruments of the First Amendment, I do think the US Postal Service will eventually issue an official Jeff Koons stamp sheet.
For Lawyers and Artists - Stamps are another thing to add to the enforcement list!
When monitoring the marketplace for instances of copyright infringement, it's easy just to stick to monitoring Amazon and Etsy, but stamps should not be missed. Luckily, with the ending of the Customized Postage program, infringement is less likely to occur.
For Stamp Collectors - There are multiple layers to who owns the art in a stamp.
After reading about the Gaylord and Mali case, do you think a stamp collector has a duty to not purchase stamps that violate someone's copyright?