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The Statue of Liberty - $4.2 million error

August 1, 2018

[update on November 5, 2018] The U.S. Postal Service has filed a notice of appeal.

 

$4,249,679.46 dollars.  That is how much the U.S. Postal Service will have to pay because it used a photo that depicted a replica of the Statue of Liberty in Las Vegas instead of the original Statue of Liberty in New York City, and violated the copyright of the sculptor for the replica Statue.  See Robert Davidson v. USA, Ct. Fed. Claims, Case No. 1:13-cv-942 (Eric G. Bruggink).

 

To see a comparison of the statues, download the Plaintiff's Reply in Support of its Motion for Partial Summary Judgment (Dkt. 78, at 6) (here is link to the Reply that I am hosting on Mega.nz)

 

Let's walk quickly through copyright issues.

 

1.  What about the copyright on the original Statue of Liberty in New York City?  Frédéric Auguste Bartholdi, the French sculptor who designed the original Statue would have a copyright on his sculpture.  However, that copyright expired and the work entered the public domain.

 

2.  Wouldn't the replica Statue infringe the copyright on the original Statue?  Yes.  The replica would infringe the copyright on the original Statue to the extent it copied elements from the original Statue.  But, again, the copyright has expired.

 

3.  Was the replica of the Statute of Liberty copyrightable?  As a derivative work, only the original, non-trivial elements added by Las Vegas sculptor Robert Davidson are protectable by copyright.  The Court found that the replica contains sufficient originality to make it copyrightable.  "We agree that Mr. Davidson’s statue evokes a softer and more feminine appeal. The eyes are different, the jaw line is less massive and the whole face is more rounded."  June 29, 2018 Order at 19.

 

4.  How did a photo of the replica on a stamp infringe the copyright on the replica?  The photo copied the original elements on the replica that were entitled to copyright protection.

 

5.  What about fair use?  Fair use is a complex factual finding, and the Court determined that the use by the U.S. Postal Service was not a fair use.

 

Image from Plaintiff's Complaint (Dkt. 1, at 6).

 

Updated on October 4, 2018 to reflect the final amount awarded to Plaintiff (Dkt #143).

 

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