Testimony concludes in Lady Liberty stamp trial; decision months away

By Bill McAllister, Washington Correspondent

Can the United States Postal Service save its $5,000 stamp design fee from its second court challenge?

That’s the essence of a decision that Judge Eric G. Bruggink of the U.S. Court of Federal Claims will soon make.

After an eight-day trial, the judge declared Sept. 20 that testimony had ended in Las Vegas sculptor Robert S. Davidson’s claim that the Postal Service owes him money for its unauthorized use of his Lady Liberty sculpture on a 2010 stamp.

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The case marks the second challenge in recent years to the USPS policy of paying stamp artists no more than $5,000 for a design.

Davidson’s case is somewhat different from the first, although both lawsuits were heard in the same Federal Claims Court.

The nondenominated (44¢ at the time of issue; 49¢ currently) Lady Liberty forever stamp (Scott 4486) is a definitive, a stamp printed in much larger numbers than the disputed 37¢ Korean War  Veterans Memorial commemorative of 2003 (3803).

Frank Gaylord, a retired Vermont sculptor, won more than $574,000 in 2015 for the unauthorized use of his art on the 37¢ stamp.

Neither the government’s lawyers nor those for Davidson would comment on the case.

If Bruggink follows the procedures often used in claim cases, he is likely to call the lawyers back to his courtroom near the White House in a few months for final arguments. 

A written decision on what, if anything, Davidson is owed will probably come weeks after that.

As the testimony concluded Sept. 20, the judge thanked both sides for “a very interesting case to try.”

He also praised lawyers for Davidson and the Postal Service for their politeness toward each other in what was a highly contentious dispute. 

As it had in the Gaylord case, the USPS once again stressed that it pays stamp artists no more than $5,000 for a design.

Big companies such as the Walt Disney organization have sometimes asked nothing because the value a stamp can give their products is huge, said Bill Gicker Jr., USPS manager of stamp development.

Gicker also acknowledged that the Postal Service had big plans for the Lady Liberty stamp when it was issued in 2010, saying it was to be the successor to the Liberty Bell forever stamp.

Financial officials at the USPS complained it was becoming difficult to recognize the year in which the Liberty Bell stamps were sold. 

That’s important because of an accounting rule that says the USPS can account for sales of stamps only after they have been used. 

By changing the forever stamp design to Lady Liberty it would be easier for the accountants to figure when those stamps were sold and at what price, Gicker said.

Not until after the Lady Liberty stamp was issued did the USPS realize it was based on a photograph of a Davidson statue standing outside the New York New York Casino in Las Vegas, not the real Statue of Liberty in New York Harbor.

The stamp design was based on a stock photo of the statue the Postal Service purchased from a photo agency.

Terry McCaffrey, then head of stamp design for the USPS, picked the photo because he found the image “unique,” postal lawyers said during the trial.

Davidson’s lawyers attempted to make a point during the trial that postal officials did not contact Davidson even after they discovered the stamp depicted his statue.

Stamp officials said they immediately contacted the agency’s lawyers when they discovered the image was of a copy of the Statue of Liberty, and they took charge of the issue.

McCaffrey, who has retired from USPS, has said he would not have used the image if he had known it was not a photograph of the real Statue of Liberty.