Davidson v. United States
13-942
| Fed. Cl. | Jul 18, 2017Background
- Plaintiff constructed a full-size replica of the Statue of Liberty at the New York-New York Hotel & Casino in Las Vegas in 1996 and obtained a copyright in the replica in 2013.
- The U.S. Postal Service used a photograph of the replica’s head on a postage stamp, believing it depicted the original Statue of Liberty.
- Plaintiff sued for copyright infringement; plaintiff moved for partial summary judgment on liability, defendant moved for summary judgment arguing noninfringement under 17 U.S.C. § 120(a).
- § 120(a) exempts pictorial representations of constructed architectural works that are located in or ordinarily visible from a public place.
- Disputed factual issues exist about whether the replica is an original sculptural work (versus merely a copy), the degree and nature of differences from the original, plaintiff’s intent, and whether differences were creative choices or dictated by necessity.
- The court denied both summary judgment motions, holding the factual disputes (and fair-use issues) preclude resolution on the present record and preserving plaintiff’s potential protection as a sculptural work separate from any architectural-work analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the replica is an original sculptural work entitled to copyright protection | Replica is original; differences from the original Statue were intentional artistic choices | Replica is essentially an unprotectable copy of the original; differences are minor | Denied summary judgment to plaintiff; material factual disputes remain about originality and differences |
| Whether USPS’s photograph infringed plaintiff’s copyright | USPS copied the protected sculptural features (the face) when it used the photo on stamps | Even if copied, use is fair or exempt under § 120; factual issues remain on fair use factors | Denied summary judgment for both parties; fair-use factors raise factual questions precluding disposition |
| Whether § 120(a) bars plaintiff’s claim by exempting photographs of the replica as part of the hotel complex | §120 cannot strip protection from a sculptural work; replica is not a “building” and not part of the building’s architectural work | Replica is part of the unitary architectural work of the hotel/casino, so photographs are permitted under §120(a) | Court rejected treating the free-standing statue as merely part of the building for §120 purposes; material legal/factual issues remain and sculpture protection remains viable |
| Whether the replica’s inclusion within the hotel’s theme converts it into an architectural element covered by the AWCPA | Replica retains independent protection as a sculptural work even if thematically tied to the hotel | The replica is effectively an element of the casino’s architectural design and thus photographs are exempt | Court held the government’s broad reading of §120 would undermine statutory protections and is inconsistent with the statute and regulations; summary judgment inappropriate |
Key Cases Cited
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (fair use is a fact-intensive, case-by-case inquiry)
- Leichester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000) (treated a streetwall as part of an architectural work; distinguished on facts here)