What would the amount of royalties/damages be, if a a copyright has been infringed? This is the big question in a case between the US Postal Service and sculptor Frank Gaylord.
Gaylord designed a stainless-steel Korean War Veterans Memorial, known as The Column. He won a copyright-infringement case earliers against the postal service for its use of the sculptures on a stamp issued in 2002, marking the 50th anniversary of the armistice. After a court case, he was payed $1,500 for rights to a photograph of the soldiers covered in snow.
But the sculptor appealed again after he was awarded $5,000 for the use of his copyright. In the appeal, the court said the amount didn’t consider how much Gaylord would have demanded in negotiations before the image was used without his permission. Gaylord wanted a 10% royalty on about $30.2 million worth of stamps, saying it is consistent with his other licensing agreements.
The U.S. Court of Appeals for the Federal Circuit said that the lower court should consider the outcome of a hypothetical negotiation over total sales, including to collectors and commercial merchandise.Gaylord was initially paid $775,000 for his work designing the soldiers and supervising the steel casting.
Whatever the outcome may be, the US Postal Service said last week that it lost $3.2 billion in the first quarter of 2012 and will temporarily run out of cash in October.
Gaylord better have a court decision before October then.