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Suit says Postal Service forgot about Korean War Memorial sculptor

Jul. 28, 2013 - 02:34PM   |  
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BURLINGTON, VT. — In late January 1996, a retired Marine named John Alli visited the Korean War Veterans Memorial in Washington, D.C., for the fifth time since it opened the summer before.

Alli was trying to capture the perfect image to present to his father, also an ex-Marine and a Korean War veteran, who was retiring from a government job.

Alli shot at least 100 photos that day, later testifying he wasn’t sure exactly how many photos he took. One of Alli’s photos — a spectral image of the platoon of soldiers at the center of the memorial, covered in snow — was later chosen for a 37-cent stamp issued by the U.S. Postal Service in 2003 to commemorate the 50th anniversary of the armistice that ended the Korean War.

The Postal Service paid Alli $1,500 to use the photo on the commemorative stamp, but did not pay Barre, Vt., sculptor Frank Gaylord, who created the sculptures Alli photographed. That decision has led to legal wrangling that has lasted for seven years, and continues to this day as the nation commemorates the 60th anniversary of the end of the Korean War.

Gaylord created the 7-foot, 6-inch tall stainless steel soldiers in the greatest commission of his long career, and holds a copyright on his creation. The Postal Service ignored that copyright when it issued the memorial stamp, according to Gaylord’s attorney, Heidi Harvey of the Boston law firm Fish & Richardson.

In addition to suing the Postal Service, Gaylord also filed a lawsuit against Alli, but settled quickly and amicably with the photographer, who agreed to pay Gaylord a 10 percent royalty on any further sales of the image.

Gaylord was paid $775,000 by the government for the statues he created but only netted about $200,000 after expenses for five years of work, according to court testimony.

Gaylord’s own experience as a paratrooper in World War II — and the five years he dedicated to sculpting the 19 soldiers known as The Column — resulted in a war memorial that many feel is the most compelling on the National Mall.

Larry Kinard, president of the Korean War Veterans Association, said most Korean War veterans think Gaylord’s creation “truly depicts what a real patrol looks like.”

“The expressions on the faces of the guys on patrol, the way they’re holding themselves going up the hill, makes us all remember what that was like,” Kinard said. “A lot of things about the war are painful. As you remember it as you get older, what it reminds me of so vividly is what we did there. The losses of friends, the sacrifices that were made.”

Harvey summarized her client’s case in an opening statement before the U.S. Court of Federal Claims in June 2008.

“The subject of the stamp was a group of soldier sculptures which are installed on the National Mall,” Harvey said. “They are the creation of Frank Gaylord, my client and the plaintiff here, the product of his mind, his hands, and his sweat. No one asked his permission for the stamp. No one compensated him. And worst of all, no one gave him any credit for his work. And so Frank Gaylord became the forgotten sculptor.”

The Postal Service declined to comment on the case because litigation is ongoing, referring questions to the Department of Justice. The Department of Justice did not respond to a request for comment.

The Court of Federal Claims initially ruled in the Postal Service’s favor in 2008, saying its use of Alli’s photo fell under the doctrine of “fair use,” exempting it from copyright protection. Fair use holds, among other things, that “transformative” works, which substantially change the purpose or character of the original work, are not subject to copyright protection.

In 2010, Harvey won a reversal in the Court of Appeals for the Federal Circuit. Circuit Judge Kimberly Moore concluded that the commemorative stamp was not a transformative work at all.

“Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work,” Moore wrote.

After it lost its fair use argument on appeal, the government offered Gaylord $750 in statutory damages. Gaylord initially asked for $3 million, based on a royalty rate of 10 percent on the sale of $30.2 million worth of stamps and merchandise.

The Court of Federal Claims settled on $5,000 as a fair amount, the most the Postal Service had ever paid for any image on a stamp. Harvey appealed again, arguing that just because the Postal Service had only ever paid $5,000 didn’t mean that was all her client should get.

Judge Thomas Wheeler of the U.S. Court of Appeals agreed, sending Gaylord’s case back to the Court of Federal Claims in May 2012, saying, “Defendants cannot isolate themselves from paying for the damages they caused by resting on their past agreements and by creating internal ‘policies’ that shield them from paying fair market value for what they took.”

Heidi Harvey expects arguments in the Court of Federal Claims regarding the appropriate compensation for her client to last through the summer.

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