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Update on Gaylord v. US

 

by Andrea L. Calvaruso

Update – If you remember the Gaylord v. US Korean War memorial fair use stamp case we had reports on over time, as a final chapter, in a Sept. 20 decision the Court of Federal Claims awarded Gaylord $684,000 against the government for using a photo of his sculpture on the stamps. The case had been up to the Court of Appeals for the Federal Circuit twice – first reversing the Court of Claims’ very questionable fair use ruling in favor of the government, and second, in 2012 reversing a $5,000 damage award by the Court of Claims in a decision directing the lower court to reassess damages based on a hypothetical commercial license negotiation.

Consistent with that appellate directive, the Court of Claims now finds that because a lot of the stamps were purchased for the Post Office by collectors and the image was used on some commercial merchandise sold by the Post Office, the fair market value in a hypothetical license negotiation was a lot higher than $5,000. Instead, the court found that a 10% imputed license fee on all such sales was appropriate.