Post Office owes $3.5M for using wrong Statue of Liberty on a stamp
arstechnica.comHave you seen the two faces side by side? https://tribzap2it.files.wordpress.com/2011/04/lady-liberty-...
I quite prefer the original myself. The post office made an aesthetic as well as legal mistake. The older Lady Liberty is not as pretty, but she's more handsome. She's less symmetrical, more craggy. Her face has seen more pain and made more hard choices. I get an impression of character that I don't get from Vegas Liberty.
My grandfather immigrated through Ellis Island around 1905. I imagine he passed that grand sculpture on the way, and saw a stronger, more concerned and committed face than Vegas Liberty's.
Yeah, how cheesy that the US (the US!) post office used a Vegas statue instead of the one on Ellis Island. What were they thinking!?
Probably "This looks like the statue of liberty". Unless I saw the photos side by side, I doubt I'd notice that the Vegas one was not legit or that it looked any different from the real one.
Good thing the US Postal Office didn't make the same mistake and use a picture of a Las Vegas Elvis impersonator on their Elvis Presley Forever stamp.
https://en.wikipedia.org/wiki/Elvis_Presley_Forever_stamp
https://www.lasvegas-entertainment-guide.com/las-vegas-imper...
American made versus a foreign import?
The statue of liberty was a gift from France, so also foreign made.
I believe that was the implication
In another article I read they quoted the person in charge of the decision, who said that he found it on a stock photo site and just like that "newer take on Lady Liberty". Maybe he just thought it was from a different angle or was photoshopped to have softer features?
The statue is on Liberty Island, not Ellis Island.
They didn’t say it was but you can see it on the way to Ellis Island.
I remember reading about this mess shortly after moving to the U.S. (and visiting Vegas for the first time). One thing that struck me about Vegas was an immense and everpresent feeling of fakeness. Seeing that fakeness reproduced on official stamps felt somewhat telling, and I've since entertained quite a few people with the story due to the sheer ridiculousness of it.
I had no idea that they'd continue to use and sell stamps with that design for years after discovering it was a picture of a fake Statue of Liberty.
Learning that this embarrassing saga has now also resulted in a lawsuit awarding a ridiculously large sum for damages kinda feels like the whole thing has come full circle.
How is $3.5 million against a $70 million profit “ridiculous?”
Probably because if the original statue of liberty was used, it'd have made the same profit.
USPS does not make profit; they are bleeding for many years now (almost $6B in 2016 by GAAP standards)
https://about.usps.com/news/national-releases/2017/pr17_069....
Not that it matters anyways; USPS is a private company.
> USPS does not make profit;
That's besides the point with respect to the comment you're responding, which is clearly about the profits from making and selling this stamp (rather than the USPS as a whole) -- and importantly, how the substance of this discussion (whether the stamp has a picture of the real or the fake Statue of Liberty) influence profits. Which I agree with grandparent that it probably doesn't, and why I think debating profits for the entire USPS isn't responsive to grandparent's comment (and why I find the awarded damages ridiculous in the first place).
In any case, for the sake of that argument, I think it's possible to discuss potential profits/losses from a single business activity/product without considering the gross profit for the entire company, organization or, in this case, government agency. Which leads to
> USPS is a private company.
No, it's not. "The United States Postal Service (USPS; also known as the Post Office, U.S. Mail, or Postal Service) is an independent agency of the United States federal government responsible for providing postal service in the United States, including its insular areas and associated states. It is one of the few government agencies explicitly authorized by the United States Constitution." https://en.wikipedia.org/wiki/United_States_Postal_Service
> Not that it matters anyways
Really? Just because a business is private doesn't mean that it doesn't matter if it turns a profit or not. Sure from some extreme and strictly capitalist (and even then, very narrow) viewpoint this might be the case.
Personally I think it matters quite a bit what companies make a profit (and can continue to exist), whether they be private, public, government-owned, and whether or not I own part of it. We live in a world dominated by capitalism where the success or failure of companies influences societies tremendously. I hope that the companies that conduct business in a way I support will turn a profit, and I hope that companies doing the opposite will loose and die.
Equifax would be a perfect example of the latter: In the absence of some sort of government action to administratively dissolve the corporation (which is rare but in their case, as one of few I can think of, would be entirely appropriate), Equifax is a company I sincerely hope will never again turn a profit.
The profit they make by selling stamps that go unused, though, really can't be separated from the rest of their activities. They make that particular profit in a way other organizations can't really, but it helps balance out their losses elsewhere. And they certainly aren't making the profit based on the image on the stamp.
It's almost like talking about the profit that a grocery store's checkout line makes, independent of the losses of their other business activities, such as stocking the shelves with groceries.
Sure, but it really sounds like we agree on the substance here - "they certainly aren't making the profit based on the image on the stamp", as also pointed out by https://news.ycombinator.com/item?id=17477124.
I agree, which is why I wrote that I think it's besides the point to discuss USPS overall profits in response to https://news.ycombinator.com/item?id=17477257. This concerns a particular stamp, and we all pretty much agree that the image is irrelevant to USPS profits. Considering that, the interesting aspect is probably more related to the USPS' decision to use an image that didn't actually depict the Statue of Liberty, as well as knowingly and intentionally continue that after being made aware of it.
I guess it's somewhat like a postal service equivalent of turning a bug into a feature, but they have to consider what the bug was in the first place as well as what it signals when they make it a feature.
I've updated my comment in an attempt to make that a bit clearer, but realize it's not perfectly worded -- it's getting late around here, approximately 4 miles from the real Statue of Liberty :)
No, it's not a private company. It's not even a government-owned corporation. According to US law[1], it's a part of the executive branch of the US government. If you're in the US, USPS debt is your debt.
There is the assumption that those stamps won't be used. I have a few, I'm not collecting them, I just don't go through stamps very fast.
> A sculptor who created a replica of the Statue of Liberty for a Las Vegas casino was awarded $3.5 million in damages last week after the US Postal Service (USPS) accidentally used a photo of his statue
Wouldn't that imply that the copyright owner is actually the Casino, and not the sculptor?
And if the USPS purchased a license to use a photograph, and Getty sold them the rights to use the photograph, wouldn't Getty bare some responsibility?
EDIT:
From Getty EULA, you are responsible:
Unless specifically warranted above, Getty Images does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
Doesn't imply that - in fact the opposite. It implies that the sculptor retained rights to imagery of the work.
Good point.
I should have said--did the defense actually determine that the sculptor retained their copyright, given the work was commissioned by a casino.
Well if the casino did own the copyright, the Post Office still had to pay up under the same exact law. A casino passing up $3.5 million? You bet they would have sued hard and probably would have won more.
That's normal for commissioned works. When you hire a contractor, by default they retain copyright over whatever they create.
https://copyright.uslegal.com/copyright-ownership/commission...
What about “work for hire”?
From the link:
> Work made for hire and commissioned work are different from one another because work made for hire involves an employee and commissioned work is executed by an independent contractor.
> And if the USPS purchased a license to use a photograph, and Getty sold them the rights to use the photograph, wouldn't Getty bare some responsibility?
The USPS have to bear the responsibility first - the sculptor shouldn't have to dig into all of the USPS' business dealings before filing a lawsuit.
However the USPS have a contract with Getty in which either Getty misrepresented what they were selling, or the USPS did not read the contract correctly. In the former case USPS should be able to recover some of the loss from Getty, but it looks more like the latter.
I don't get it... the USPS licensed the photo from Getty. Doesn't that license cover the use of the photo?
IANAL...and this is specific to US Copyright law.
Yes, it does, but doesn't necessarily grant copyright for the content of the photograph.
I can sell a photograph of that statue, and be protected from copyright claims IF my work meets the Fair Use standard. I can also give you permission to use my photograph commercially. However you may not use it yourself commercially without permission of the statues copyright owner. The copyright owner can restrict it's usage outside of those covered by the Fair Use doctrine.
Two examples:
If I take a picture of of a person, I own the copyright for that image. I can sell it to you, but what you can do with that image is limited. You can use it privately, but to publish it in say a magazine, you would need a model release form. You have the rights to use the image, but not to the subjects likeness. There are cases where no release is needed, such as the case for photojournalism, or when the figure's likeness is already in the public domain (i.e. a politician, or another type of celebrity).
The lightshow & fireworks show at the Eiffel Tower in Paris is a copyrighted work. Pictures of it can be used for personal use, but commercial use is prohibited. In order to use a picture of the light show commercially, you must obtain permission (aka a license) from the Eiffel Tower Society. They have explicitly restricted the use of lightshow pictures. [1]
As an aside, this is one of my beefs with Getty Images. It allows people to upload photographs to which they do not actually have all the rights to, and Getty then sells a license to use it.
1: https://alj.orangenius.com/night-photos-eiffel-tower-violate...
This is why copyright is so messed up. If I take an photograph of a building designed by someone else, can I sell my photo freely?
In the US buildings are covered under freedom of panorama and photographs of buildings taken from public areas are not copyright infringement. Sculptures are not covered under freedom of panorama in the US, and generally photographs of sculptures or other works of art are derivative works.
Second there is a major distinction between commercial use and fine art. Selling an image on a stock photo site to be used in an advertisement requires a release from any models, or from the sculptures copyright owner in this case. If they were selling a limited number of fine art prints they would not need a release.
Here's a list from Shutterstock of some items restricted: https://www.shutterstock.com/blog/contributor-resources/lega...
If the building is a work of art, then depends who owns it's copyright, and what restrictions they have placed on commercial use.
But most likely it's not, so your image would almost meet the Fair Use standard. It's derivative.
Getty indemnifies to the tune of $1m per image but that probably has loopholes you could drive the Statue of Liberty through.
Normally Getty and other stock image sites require a photo release or other relevant releases before selling images for commercial use. Other images will be for editorial use only, or more commonly they will not accept them on the site at all.
Getty made a mistake, and notified USPS a few years before the lawsuit. This was four months after the image was licensed. USPS continued to use the image from 2011 through 2014 knowing that there was no property release and that one was needed.
What is interesting about this case is the artist was not aware of the infringement, did not register the copyright and did not file suit until 2013, and the court is still considering a royalty for unused stamps from before the copyright registration. The court case is far from over though, given the size of the settlement it will be appealed.
> "Davidson sued, arguing that he was owed royalties for unauthorized use of an image of his statue"
Orthogonal, though can't help but wonder whether Davidson got Frédéric Auguste Bartholdi's approval before re-creating an almost identical statue.
The original was built in the 19th century. Even with all the ridiculous extensions, it surely isn't still covered by copyright.
And it’s totally original, not some derivative knock of designed to evoke thoughts of some other creation.
So what do you exactly pay for when you license an image from Getty?
Part of someone's soul. Which is why they charge so much
You get permission from Getty to use the image.
Copyright of derivative works is additive: If you want to use an interesting photo of a sculpture, you need permission from both the photographer and from the sculptor.
In this case, Getty represents the photographer, but you still need permission from the sculptor.
Getty's license claims "Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers."
That line is wrong, of course, but every license comes with a limitation of liability so you can't sue them for being wrong: "Limitation of Liability. GETTY IMAGES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GETTY IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY."
:/
So basically getty did not own the full equity to the image but tried to sell it as if so anyways...
Seems like Getty caused damages to the scultpor. Why wasn’t getty sued for profiting off the scultor’s work?
Their license is surprisingly readable:
The right to use that image. Not the right to create derivative from it. Also licensing depends on end-use and can vary depending on the degree of use — a small print run of 500 copies of an ad using an image often has a different license cost than using that same image for a national ad campaign.
Terms of licensing are super clear when you buy stock work. What makes no sense is why the post office would even bother — there are plenty of public domain photos of the statue. Or they could have just had a mailman go shoot one and pay him $1000.
This is just incompetence, there wasn’t any ambiguity to what they were doing. They admit they used an image for commercial gain without knowing they were infringing — that’s negligence. They used that image because they knew it would sell more stamps. Even a basic legal review would have caught this — this sort of clearance/rights due dilligence is standard stuff. This wasn’t editorial and thus “fair use” would’t apply — this was used specifically to sell stamps. They can’t argue parody, satire or any of the numerous cases that might constitute fair use.
The post office made $70 million in pure profit from their misappropriation, the original art that led to that profit ought to be compensated accordingly. Had even a baby lawyer been consulted, they could have avoided this mess. Being a government agency doesn’t exempt you from the law.
Non-AMP version: http://arstechnica.com/tech-policy/2018/07/post-office-owes-...
Mods, please update the link.
The one on the right seems tired to hold her torch.
It appears to be a bit different now, but apparently you used to be able to send unsolicited stamp designs to USPS and they'd sometimes get selected. Now they want you to send a portfolio [1].
A family member had a Christmas-related stamp selected in the 80's. I'm guessing it was a bigger deal then.
Quite the interesting story, and a staggering surprise that 3.24% of bought but unused stamps is over $70,000,000 in revenue. Guy made out like a bandit. Good on 'em.
USPS is going to fold before I receive my package :(
Because they lost just 3.5m of 70m in pure profit?
This wasn't the first time either: they were sued by the artist of the Korean War Memorial for using a photo of that without proper permission. https://en.wikipedia.org/wiki/Korean_War_Veterans_Memorial#U...
It's interesting that these are "Forever" stamps and don't expire so how can they possibly say all of those unused stamps are profit? They don't expire and due to the nature of stamps it is not unrealistic people will still be using them for a decade+ and USPS will still need to deliver those letters.
NYC owns the Statue of Liberty - maybe they should sue the sculptor for copyright claims... a virtuous circle.
The designer of the Statue of Liberty, Frédéric Bartholdi, died in 1904. The copyright has long since expired. It's public domain.
Walt Disney also died a long time ago. Yet the mouse is still under copyright. [1]
[1] https://mag.orangenius.com/how-mickey-mouse-keeps-changing-c...
Frédéric Bartholdi (1834-1904) and Walt Disney (1901-1966) both died a long time ago, but copyright has expired on all works from 1922 and earlier.
It's governed by the US National Park Service, and it's a derivative work.
Is there any clear line on what is considered a derivative and what is a copy without substantial deviation?
As far as I know, no. It's usually up to a Judge to determine. Per this specific case, the USPS tried to argue something along those lines, but the plaintiff successfully claimed that because the statues face was feminized, it was not a copy, but a derivative.
That is ingenious. Considering that Mithras is a man, so a feminine version is easy to argue as substantially different.
In the article, the sculptor claims that he made the statue more feminine.
Government works are not entitled to domestic copyright protection under US law and are in the public domain.
When I first read the title, I thought that they had mistakenly used the Statue of Liberty from the Man in the High Castle [1]. Now that would've been embarrassing.
---
Why was the royalty payable only on unused stamps? Surely if a royalty was due, it should be on all stamps that used the image?
Seems the court accepted the fair use argument for the stamps that were sold and used, but the "pure profit" stamps that weren't didn't pass the muster.
The stamps that were used were used as payment for mail transport and delivery. There was presumably no profit there (it's not a company trying to make money), so no net benefit to the USPS from the use of the photo.
I doubt an argument based on lack of profit would hold in other cases of intellectual property infringement by a major corporation.
They'd easily make that money back by selling the erroneous stamps to collectors.
Elvis inmpersonators everywhere, beware!
This is the most American story I've read in a while. So many wasted resources were spent on identifying each actor's responsibility in court when it's just such a trivial and pointless issue. Completely rent-seeking on all sides.
Wow. Such URL. Or: https://arstechnica.com/tech-policy/2018/07/post-office-owes...
I support this alternative address. Additionally, the url preview clarifies that Ars Technica is the source, as opposed to “ampproject”.
It's worth noting that the AMP version supports IPv6, unlike arstechnica.com itself.