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By Emily E. Campbell and Madeline Bugh
Dunlap Codding
Oklahoma City, Oklahoma

While most art can be protected by copyright laws, if a “new” piece of art is too similar to a prior work, then it cannot be protected. The work of art, at the very least, must be “a new and original expression of some previous work.” Davidson v. United States, No. 13-942C, 2018 Fed. Cl. WL 3213604, at *10 (Fed. Cl. Jun. 29, 2018). A thin line lies between creating a new embodiment of artistic expression of the Statue of Liberty, and a mere replica. However, this begs the question of where exactly defines the line that separates a mere replica and a new interpretation of art?

Fortunately for us, that fine line may have gotten just a bit clearer after the United States Court of Federal Claims issued a $3.5 million judgment in favor of an artist who created his own interpretation of the Statue of Liberty. Davidson, 2018 Fed. Cl. at *1. Mistaking it for the iconic Statue of Liberty, the United States Postal Service (USPS) created a stamp from an image of the face of Robert Davidson’s statue, which stands outside of the New York - New York Hotel & Casino in Las Vegas. Id.

The question for the court was whether Davidson’s statue constituted a new artistic expression of the Statue of Liberty, so as to be protected by copyright law, or whether it is merely a replica. Id. The answer to that question would determine whether Davidson was eligible for copyright damages resulting from the USPS’s unauthorized use of Davidson’s art on the stamp. For Davidson to receive damages, his statue had to be considered an artistic interpretation of the Statue of Liberty, and not just a replica. Id. at *10; however, if Davidson’s statue was only a replica of the Statue of Liberty, and therefore not protectable by copyright law, then the USPS could not infringe. Id.  

The Supreme Court’s standard for proving an artistic work to be original is that “even a slight amount [of creativity] will suffice.” Id. Thus, in determining whether the USPS violated copyright protection of Davidson’s statue, the Federal Claims Court evaluated the culmination of differences between facial features of the original Statue of Liberty and Davidson’s re-creation. Id. at *11. Finding that Davidson’s statue “evokes a softer and more feminine appeal,” the court ruled that these differences were significant enough to validate Davidson’s copyright protection and make the USPS liable for infringement. Id.

It appears that through this decision the Federal Claims Court has helped to define, just a little bit more, the distinction between what may and may not be protected by copyright law. While that line may still be fairly murky, it is indeed an important one to distinguish properly. If you need help navigating, consult your friendly Patent, Trademark, and Copyright attorneys at Dunlap Codding. We will be happy to help. 

Davidson v. United States: https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2013cv0942-136-0
Stamp Image (cropped and edited) from: http://fortune.com/tag/usps-2/