Expensive Mistakes

Not all art is in the public domain, even if it is in a public place. even if an image-licensing service can license the right to use a specific photographer's photograph of that art. One might still, additionally, need a license from the original artist.

The United States Postal Service made such an expensive error, and will have to pay $3,554,946.95 plus interest to a sculptor.

Initially, a USPS employee mistook a view of a modern sculpture inspired by Lady Liberty for the Ellis Island original.  The latter is in the public domain. The former is the intellectual property of the living sculptor. Possibly, the USPS could have settled for $5,000 when they first discovered their mistake.

In a Washington Post article from 2013, author Lisa Rein quotes the lawsuit.

"Defendants, through the USPS, determined that it was in their financial best interest to continue to infringe upon Davidson's rights, as the costs to discontinue the infringing activity exceeded the marginal cost of royalties...."

They calculated wrong. Way wrong.  Legal blogger Jesse M. Brody for the law firm Manatt Phelps and Phillips LLP suggests that this may turn out to be one of the most expensive copyright mistakes ever.

https://www.lexology.com/library/detail.aspx?g=382f2fb0-40d7-46a1-bf28-5abef7caa891&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-07-20&utm_term=

It would appear that the costliest part was a 5% running royalty on the 3.24% of the stamps that were bought by stamp collectors, and represented unadulterated profit for the USPS.

An article by Timothy B. Lee for Ars Technica shows the two faces of the Statute of Liberty: the fierce-faced original on Ellis Island, and the troubled-looking homage in Las Vegas.
https://arstechnica.com/tech-policy/2018/07/post-office-owes-3-5m-for-using-wrong-statue-of-liberty-on-a-stamp/

Presumably, this costly lesson in copyright infringement affects us all. We'll probably all pay more for stamps,
forever.

Now comes General Motors, with the argument that Joe Public should not be expected to research the history of every public building (especially if that building is covered in graffiti) before taking a photograph, or filming something else where the graffiti is in the background.

The case of Faulkner v General Motors Company is discussed by author Alan Feuer for the New York Times.
https://www.nytimes.com/2018/07/17/arts/design/general-motors-graffiti-artist-copyright.html

It raises some interesting issues about the use of photographs and films of public buildings and art in (and on) public places.

For artists, the copyright alliance has a timely article on how to copyright your paintings.
https://copyrightalliance.org/ca_faq_post/copyright-my-paintings/

For artists who wish to license certain rights to a work, but not to relinquish their copyright in the work, the very generous and courteous people of ARTREPRENEUR publish a template agreement, free, on condition that the beneficiaries of this template give them written credit.

Find the template here:
https://artrepreneur.wpengine.com/wp-content/uploads/2017/08/Artist-licensing-agreement.pdf

Explicit credit: https://artrepreneur.wpengine.com/

All the best,

Rowena Cherry