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John C. Gatz is a member of the firm Nixon Peabody LLP in Chicago. Column contributors include the following writers. Copyrights: Zachary J. Smolinski, Panduit Corporation; Michael N. Spink, Brinks, Hofer, Gilson & Lione; Mark R. Anderson, Ulmer & Berne LLP. Trademarks: Janet M. Garetto and Elizabeth W. Baio, Nixon Peabody LLP; Amy L. Sierocki. Patents: Cynthia K. Barnett, Johnson & Johnson; Timothy M. Kowalski, Google Inc.; R. Trevor Carter and Daniel M. Lechleiter, Faegre Baker Daniels LLP; Robert W. (Bill) Mason, Kinetic Concepts, Inc.
Gaylord v. United States, 678 F.3d 1339, 102 U.S.P.Q.2d 1717 (Fed. Cir. 2012). Plaintiff Frank Gaylord created a group of sculptures entitled “The Column,” which depicts a platoon of soldiers and is the centerpiece of the Korean War Veterans’ Memorial on the National Mall. The United States Postal Service (USPS) issued a stamp featuring a photograph of The Column, which the USPS licensed from the photographer. No license or permission was obtained from Gaylord. The Federal Circuit earlier ruled that the USPS was liable for infringement, and remanded the case to determine damages. The Court of Federal Claims rejected Gaylord’s claim for a 10 percent royalty on about $30 million in revenue based on his typical licensing arrangements, and held that the proper measure of damages was to employ a “zone of reasonableness.” The court found the zone was between $1,500 and $5,000, since a $1,500 royalty was paid to the photographer of The Column and the USPS had never paid more than a $5,000 royalty to license an image for a stamp.