## Facts

- In 1996, Robert Davidson, a sculptor, completed a replica of the Statue of Liberty for a Las Vegas casino.
- The replica largely copied the original Statue of Liberty, but Davidson intentionally changed the statue’s face to create a softer, more feminine look.
- Davidson based the modified facial features on a photograph of his mother-in-law.
- The facial differences between Davidson’s replica and the original New York statue were plainly visually observable.
- In 2008, the United States Postal Service (USPS) decided to change the image on its Forever Stamp and sought a patriotic icon for the new design.
- Terry McCaffrey oversaw selection of the stamp image and chose what he believed was a close-up photo of the face of the New York Statue of Liberty.
- The selected photo was actually of Davidson’s Las Vegas replica.
- USPS purchased a license for the photo from Getty Images and used the photo on the stamp with no changes other than sizing and cropping to fit the stamp format.
- After the stamp went on sale, USPS learned the photo depicted the replica rather than the original statue.
- One USPS employee stated it was “quite apparent” from the image that it was the replica, and other employees reacted positively because it differed from many earlier Lady Liberty stamp designs.
- After learning of USPS’s use of the replica image, Davidson filed a copyright application for the sculpture, and the registration issued in 2013.
- Davidson then sued the United States for copyright infringement based on USPS’s use of the image on the Forever Stamp.

## Issues

1. Whether Davidson’s replica sculpture contained original expression (particularly in the altered facial features) sufficient for copyright protection despite its close relationship to the original Statue of Liberty.
2. Whether USPS infringed by reproducing Davidson’s protected sculptural expression through a cropped and resized photograph placed on mass-distributed Forever Stamps.
3. Whether USPS’s use of the image on postage stamps was excused (including under fair use principles).
4. If infringement occurred, what “reasonable and entire compensation” was owed for the government’s unauthorized use.

## Decision

- The court held that Davidson’s sculpture included protectable original expression in the facial features he created for the replica, even though the overall work referenced the iconic preexisting statue.
- The court found that USPS’s use of a photograph depicting the replica’s face, cropped and resized for the stamp, reproduced the protectable elements of Davidson’s sculptural work and therefore constituted infringement.
- The court rejected defenses that would excuse the copying based on USPS’s selection and use of the image as a stamp design.
- The court awarded monetary compensation measured by a reasonable royalty tied to the scope of the government’s use.

## Legal Principles

- A work closely based on a preexisting subject can still receive copyright protection to the extent the author contributes independently created, nontrivial original expression.
- Reproducing protected sculptural elements through a photograph can infringe when the photograph captures and is used for the protected expressive features, not merely an unprotected idea or general subject.
- Cropping and resizing an image for placement on a stamp does not, by itself, eliminate copying of protected expression.
- When the federal government uses copyrighted work without permission, the copyright owner’s remedy is monetary compensation measured as a reasonable royalty for the use.

## Conclusion

Davidson created a Lady Liberty replica with a distinctly altered, more feminine face, and USPS unknowingly chose and licensed a photograph of that replica for its Forever Stamp, changing only the photo’s size and crop. The court concluded that Davidson’s original facial expression was protectable and that USPS’s stamp design reproduced those protected features without authorization, warranting an award of reasonable compensation for the government’s use.


Davidson v. United States, 2018 U.S. Claims LEXIS 801 (2018)