Last week, the United States Postal Service (“USPS”) was ordered to pay over $3.5 million to the sculptor of “Lady Liberty,” the sculpture in front of the New York Hotel & Casino in Las Vegas, Nevada.[1] In 2010, the USPS decided it was time to replace their “work-horse” stamp design and hoped to adopt some version of the Statue of Liberty as the replacement. A certain depiction of the Statue was chosen by a USPS employee because it was “different and unique.” In 2011, USPS learned that the stamp was not a depiction of the Statue of Liberty, but rather one of Lady Liberty. The USPS continued to use the stamp until January of 2014, profiting over $70 million from the specific stamp.

Robert Davidson, the sculptor who created Lady Liberty, filed suit against the United States for copyright infringement. Davidson claimed that he had a valid copyright in his Lady Liberty creation and that USPS’s action of creating stamps with a depiction of his original work was infringement. In awarding the over $3.5 million to Davidson, the Court of Federal Claims concluded that the Lady Liberty statue is original because Davidson was attempting to achieve a face on the sculpture that was more “contemporary and feminine” than the Statute of Liberty. Reasoning further, the court stated “[t]he finder of fact need only to be able to observe a nontrivial expression of artistic creativity.”^[2] Finally, the court acknowledged that “a comparison of the two faces [of the two statues] unmistakably shows that they are different.”^[3]

While unfortunate for USPS, this serves as a reminder to authors, artists, and creators of their initial rights in their work. Every creator of intellectual property, so long as the creation can be considered an original work, automatically has the exclusive right to:

• Claim authorship
• Reproduce the work
• Prepare derivative works based upon the work
• Distribute copies of the work to the public by sale or other transfer of ownership or by rental, lease, or lending
• Perform or display the work publicly
• Transfer ownership of the copyright, or parts of those rights
• Prevent modification that would prejudice the creator’s reputation
• Disassociate from a work that has been modified in a detrimental way
• In some cases, prevent destruction of the work

In Davidson’s case, the court determined Lady Liberty to be an original work, and because Davidson never authorized the image of his creation to be replicated on the stamp, his copyright interest could be protected. Artists and creators should take heed that contracts to complete work for clients very often transfer some or all of these rights from the outset either explicitly or by considering the creation a “work for hire,” which is treated differently under federal copyright law. Additionally, while copyright protects the work itself, it does not protect titles, names, short phrases, ideas, or systems, which are controlled by other types of intellectual property law.

If you have questions about how the rights above can be applied to, or how best to protect, your original work, or how you can use the original work of someone else, contact Nicole Hampton today.