By Bill McAllister
Lawyers for the Nevada sculptor whose image of Lady Liberty was placed on a 2010 United States forever stamp without his approval have told a federal judge the U.S. Postal Service owes the artist more than $10 million for using the copyrighted image.
That argument, certain to be challenged by government lawyers who have insisted that the Postal Service never willingly pays more than $5,000 for a stamp image, came in a 44-page filing in the U.S. Court of Federal Claims in Washington, D.C.
That is where Robert S. Davidson has staked a claim that the USPS must pay him royalties for placing an image of his artwork on nearly 5 billion stamps without seeking his permission.
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“… While the USPS has reaped the benefits of its use of Davidson’s creative work, it has been completely dismissive of any obligation to honor his rights,” claimed his lawyers in their Dec. 15 filing.
The lawyers scoffed at the USPS claim that stamp officials “unknowingly” selected an image that was not of the real Statue of Liberty in New York harbor. They also noted that the USPS kept printing the stamp and praising its design after the belated discovery it was based on a statue outside the New York New York Casino on the Las Vegas strip.
They argued in their post-trial brief to U.S. Judge Eric G. Bruggink that regardless of how Davidson’s royalty fee is calculated, the Postal Service’s “admissions confirms that the fair market value of a license [for use of the image] would have exceeded $10 million.”
Under one scheme, Davidson could claim a flat fee of $1 million for “all mail use stamps” and a royalty of 10 percent for all unused stamps, mostly sold to collectors. That formula would give Davidson “total damages of $11.6 million,” the lawyers said.
Lawyers sought to describe their client’s artwork as distinct from the real Lady Liberty.
“The re-imagined Lady Liberty standing on the Las Vegas strip is the artistic creation of one person: Robert S. Davidson,” they said.
His statue is “a more delicate, modern, feminine and fresh-faced statue,” they said.
The filing followed an eight-day trial in September that left many of the issues in the dispute still to be decided.
By setting a high price on the royalties that Davidson claims, the gap between the two sides in the case may have widened. If the judge follows past practices in his court, he may order both sides to appear for final arguments before he writes his decision.
Much of the lawsuit seeks to follow the precedent the Court of Federal Appeals set in a 2015 stamp case. In that case, Frank Gaylord, a retired Vermont sculptor, won more than $574,000 for the unauthorized use of his artwork on the 2003 37¢ Korean War Veterans Memorial stamp.
The Lady Liberty stamp is a definitive that was hurried to postal counters as the Postal Service sought to replace its Liberty Bell forever stamp.
With billions of Lady Liberty stamps produced, the potential royalty payments are much higher.
Postal officials acknowledge that the stamp design, selected by Terrance McCaffery, the longtime head of stamp design at the USPS, was made from hundreds of stock photographs he reviewed. McCaffrey has said he didn’t realize at the time that the image he urged the Citizens’ Stamp Advisory Committee to approve was of a statue outside the Vegas casino. Had he known, he said he would not have pushed the image.
In their arguments to Judge Bruggink, the Davidson legal team said the USPS liked the image McCaffrey selected so much that they boosted it was an excellent stamp image even after they realized it was not the real Statue of Liberty.
“That attitude changed only after Davidson sought compensation for the theft and unauthorized commercialization of his intellectual property,” the lawyers said.
Only then did the Postal Service reverse course, questioned his artistic abilities and proclaimed that it would have never used the image depicting Davidson’s statue, said the filing by the Las Vegas law firm of Pisanelli Bice PLLC.