U.S. Postal Service lawyers urge judge to reject Lady Liberty stamp claim

Washington Postal Scene — By Bill McAllister

Lawyers for the United States Postal Service have urged a federal judge to reject a Nevada sculptor’s claims for million of dollars in damages for the unauthorized use of his Statue of Liberty sculpture on a 2010 stamp.

In a brief filed in the Court of Federal Claims, the lawyers said Robert S. Davidson’s claim for more than $10 million is seriously flawed because the public and postal officials failed to recognize his statue was not the American icon on Liberty Island.

“At best, Davidson has a very ’thin’ copyright that so closely resembles the original statue that the Postal Service and the public did not know that the stamp image came from a photo of a replica,” the USPS’s lawyers said.

Although the Lady Liberty stamp went on sale Dec. 1, 2010, the brief noted it was not until March 18, 2011, that Sunipix, a photo agency, notified postal officials that the stamp image was not the real Statue of Liberty.

The brief also pressed senior judge Eric G. Bruggink to declare that use of the Davidson statue on a 2010 forever stamp constituted “fair use” of a statue that stands outside the New York New York Hotel in Las Vegas.

Davidson’s lawyers fired back at the Postal Service’s argument in a reply brief filed March 2, saying evidence presented at an eight-day September trial in Washington “confirmed that Mr. Davidson has an enforceable copyright in his creation, the USPS infringed (it) and the USPS’s use was not fair.”

As for Davidson’s Lady Liberty sculpture, his lawyers said the Las Vegas artist had “artistic license to recreate his own vision of the Statue of Liberty” and that his design was significantly different from the Frederic-Auguste Bartholdi original.

“This was an entirely different face,” the brief quotes Davidson as telling the judge. “It just took on a life of its own, to be honest.”

During the trial, Davidson said, “I did what I thought was a little more modern, a little more feminine.”

“And to be honest, I can’t tell you all the details, that the nose is turned up a little bit more, the eyebrows are higher or lower,” he added.

The sculptor’s lawyers also quoted Postal Service officials as initially praising Davidson’s design, calling it “very different from anything [the USPS] had done before.”

“I can’t recreate it, you know,” Davidson was quoted as saying at the trial. “I can’t be accurate. I can give it the feel of the Statue of Liberty, but I can’t recreate it.”

In their brief, lawyers for the Postal Service attacked a lack of originality in Davidson’s statue.

“Davidson’s replica of the Statue of Liberty is, at most, a ‘derivative work’ because he intended to copy the original Statue of Liberty,” they said.

The Postal Service lawyers said Davidson’s lawyers had failed to prove that the stamp used “original elements” that Davidson placed in his “Replica Statue of Liberty.”

They charged that Davidson made a profit of “approximately $250,000” creating his statue for the casino and failed to show any loss of income as a result of the stamp’s release, they said.

As for the Postal Service, the lawyers repeatedly pointed out it has “operated at a loss.” The Postal Service’s stamp development group has an annual budget of “approximately $3.3 million, with $400,000 budgeted for the purchase of art on an annual basis,” the brief disclosed.

For the image of Davidson’s statue, the Postal Service paid Getty Images $1,500 “for a three-year, non-exclusive license to print the photograph more than 1 million times,” it said.

The brief noted that “the Postal Service routinely negotiates licenses for images on stamps for a lump-sum license fee between $0 and approximately $5,000 and often in the range of $1,000 to $2,000.”

When the Postal Service cannot obtain rights to an image “with a mutually satisfactory license, the Postal Service does not issue the stamp,” the brief said. It cited the agency’s inability to agree on a price for an image of a polar bear. The chapter in the Linn’s U.S. Stamp Yearbook 2009 on the 28¢ Polar Bear stamp issued April 16, 2009, shows an early design concept based on a photograph of a side view of a bear walking. The photographer “demanded $5,000” for its use of that image according to the book.

Terry McCaffery, the longtime head of stamp design at Postal Service, selected the image for the 2010 Lady Liberty stamp from photographs supplied by a photo agency.

He believed photographer Raimund Link “had captured a unique and different photograph of the original Statue of Liberty,” the brief said.

“We never would have issued that stamp if we had known it was the Lady — the Las Vegas replica,” the now-retried postal official told the judge.

The Statue of Liberty stamp was to be a workhorse replacement for the long-running Liberty Bell forever stamp series, the brief said.

During its four years of sale to 2014, the Postal Service sold 4.9 billion of the Lady Liberty stamps, raising $2.9 billion, according to the brief.

Postal Service lawyers concluded their 40-page brief by telling the judge that he should reject Davidson’s claim “and award no more than minimum statutory damages — $750.”

But if the court wants to uphold the “fair market value of a non-exclusive copyright license” of Davidson’s statue, that would suggest “the Postal Service would have paid Davidson a lump-sum royalty of $10,000,” the brief said.

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That would be “the upper limit of a properly constructed hypothetical negotiation for the use of the Replica Statue of Liberty in a workhorse stamp.”

It is not clear when the judge will rule on the claim.