Legal Case Summary

. The government recognized that in respect to the person who took the picture and the person who took the picture told them that they needed to get permission from the holder of the underlying right. The government plainly recognizes that it has to get permission to use copyrighted works, but they just ignore it. And Luzal was a pretty significant loss of income and... Could I get you to focus on the fair use factor, factor number one, the purpose and character of the use, and in particular whether or not the photograph, well, whether or not the stamp was transformative, such that this would tend more towards a fair use or that that factor would tend more towards a fair use. I believe if you compare the original statute and the stamp, which unquestionably is a derivative work, no matter how it was derived, because that is a very nice picture of the statute and the stamp, the statute, the sculptural work. Okay. Transformative is a difficult concept to deal with here because it's both a dictionary word and it is sometimes used as a word of art for fair use. And the Supreme Court and Campbell against Ake of Rose tends to use it in both respects when it talks about a degree of transformativeness or how transformative is the document. Now your question, Your Honor, I think was, where does it tend on the scale of transformative the answer would be very much against fair use. If you want to see what is transformative, the purpose is a fair use. I can give you a couple of examples, perhaps, a pretty woman from the Ake of Rose case, the original. I guess I'll go on home, it's late. They'll be tomorrow night, but wait. Again, we're talking only about the lyrics, nothing to let you. I guess I'll go on home, and they'll be tomorrow night, but wait, what do I see? Is she walking back to me? Yeah, she's walking back to me. Oh, pretty woman. Because two-time and woman, girl, you know you ain't right. Two-time and woman. I want to interrupt your argument because you're talking about copying of that which was copyrighted. What I'm trying to understand is the difference between copying a picture and a picture of the copyrighted work, which is a work of art, a work of sculpture. And actually copying the sculpture itself

. Where does the sculpture allow that... The copying of the sculpture, your honor, is a derivative work. They didn't copy the sculpture. They... I'm sorry, the copying of the sculpture by photography. There'd be no problem if they had just copied the sculpture and were selling the sculpture or models of the sculpture. That's not the issue. That's clearly infringement. Yes. The photographing of the sculpture is a derivative work under section 1-0. The definition section under 1-1, a work based on one or more pre-existing works, which in a non-mock quoting exactly now here, in some form recast, transforms or adapts the original. The copy right owner has the exclusive right to make a derivative work, which in this case the stamp plainly is, with and of course here's the rub that gets us into the courthouse right today, unless the copy is a fair use under section 1-0-7. When we see these uncertainties in the evolution of the statue was resolved in connection with works of architecture. So these are the principles that you think need to be applied here. I beg your pardon, your honor. This is not a work of architecture. This is a work of sculpture. Precisely. That's why I was wondering about the applicability of the principles where the blueprints would have been covered

. Here we have a photograph of an original work of art, setting aside the ownership of that work of art as opposed to the ownership of the copyright to the work of art, which I think is a question that may need to be confronted along the way. There's no question that Mr. Gaylord does not own the statues. Is that right? He only owns the copyright. Mr. Gaylord only owns the copyright, but that nevertheless, as a matter of pre-muffetia right under the copyright statute, gives him and him alone the right to prevent infringements of it. Because of the absence of work for hire, is that the reason? No, it's not. It's got nothing to do with work for hire. Whether this is a work for hire or not is not an issue in this case. If he worked for hire, he wouldn't be able to control the copyright, would he? No, he wouldn't, but this is not an argument that the government has made. It's not an argument that anybody else has made, and the government, nobody to, moment, made any effort to stop. But there's no question as to who owns the statues, is that right? The statues themselves. As between the United States government, the United States Army, there are a number of people in there. There's no question that ownership of the physical statutes no longer resides in Mr. Gaylord. That's your point, but that's not relevant to the copyright infringement. He owns the copyright. That is correct. So ownership of the statutes has no bearing on this case. Correct. That's my position, yes. I know what's the number of the position also. Unless they come up with a new argument this morning

. So is it true that the lower court never looked at the commercial use of the stamps in connection with factor number one for the fair use analysis? Well, commercial, commercial use bears on the fair use analysis. It's one of four factors. Well, it's articulated in number one, and I thought I understood one of your arguments to be that the lower court didn't properly consider or take into account. The fact that the government was selling stamps for a profit, i.e. this was a commercial use when it analyzed factor number one. Am I misunderstanding one of your arguments? I think it's factor number four, but other than that, you're not misunderstanding it. Factor number one under the statutes says the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education. Number four, which used to be the primary one, is the one that is more commercial. Commercial act, commerciality is a part of factor one, you're correct. And I didn't see anything in the lower court's opinion that took into account commercial nature of the use with regard to its analysis under factor number one. Is that correct? Am I wrong about that? I don't recall anything. I believe you're correct, yes. So to pursue your comment on commerciality, is this the distinction you're wrong? You're not saying that a visitor to this site can take a photograph. Of course not. Of course not. So that there was a lot of fact yesterday afternoon, there were dozens of them when we were there, neither was tried to stop any of your arguments. Now, where is the distinguishing between copyright violation and this threshold display of a national monument? The distinction between the copyright infringement and the taking of a photograph is that while the photograph is always a derivative work, it plainly falls. The photographs we were seeing taken at least could be expected to fall within the fair use exception because there was no commercial intention, whatever. Most of them were of family members or friends or whatever standing in front of the statue or kneeling down or something like that and posing before it. And these things are going to be taken maybe half a dozen prints made and sent the family friends, but that's it. And that's sold, which is a critical distinction. I imagine you would draw

. If I set up, took my camera out there, took a photograph and proceeded to sell 10,000 copies of it on the internet in the form of posters or any other display, you would consider that to be inappropriate copyright. Certainly, you would hear from Ms. Harvey, but you'd hear from one of us if we found out about it. And before you were done, did you touch on the joint authorship matter? Why aren't some of the people who are making recommending the changes that he agreed to join authors? The main question here, the main answer to that, or your honor, is that this is not a work of joint authorship because the government, well, the first place is no other. There's no evidence that any other person contributed any of the copyrightable subject matter here. Second, the court found that Mr. Lackie's testimony as to getting in there and tinkering with the ponchos and the way they looked on the statues was simply, you know, apparently a. Law or a fault or a memory or something because the invoices pretty clearly showed that what he said he thought he had done was impossible. The statues were elsewhere at the time he supposedly worked on. The government says that they were wearing the capes, the expressions on the faces, the. They said they, and so on that there was significant contribution. You say none of that contributed to the copyrightable nature, but. I would say it was direction, which almost anybody who accepts a commission for a work will take. He certainly talked with him, but he himself did all or he and the people he employed did all. No, the physical work. You say except the commission, but the issue doesn't arise if it's treated as a work made for hire, so we wouldn't really know. Have recently to pass the real. I believe your honor that under the standards of the case, the man, the name of which my escapes my memory at the moment. This was clearly not a work for hire. They made these people were not paying him a salary. They weren't furnishing it in his workspace. This is the work paying medical benefits or social security. Was he paid for the sculpture? Sure, but that's not the measure of since the Supreme Court dealt with the subject

. I know I was sometimes when I was with the only prior law firm, which was more than a dozen years ago in landmark case on what is a work made for hire. It's determined by agency principles, basically. And if I heard the name of it, that's not the test, whether you get paid for your work and whether it's a work made for hire are fairly far different. I'm a specter. Let's hear from the other side and we'll save you a little time. Oh, excuse me. May I wake one more point and answer the question? Mr. Lucky and behalf of the government acknowledged, and this is on paragraph one of joint appendix 1171, that Gaylord is the sole author of the call of the sculpture. Okay. Thank you. Mr. Bowden. That's right. May I please the court? The fair use doctrine recognizes... But it would be convenient if I had to start backwards because we're all kind of right now fresh on the authorship issue. Would it be okay if you started there? Sure. Okay. So the government has a cross appeal on the lower courts or determination of whether or not Mr. Gaylord is entitled to sole ownership or sole copyright ownership. Is that right? Your Honor, I wouldn't characterize it as a cross appeal, but yes, we are challenging that a joint owner of.

.. Exactly. Exactly. We are arguing that a joint owner of both the column and the memorial as a whole granted the government whites in both of those works. The CFC found that Mr. Gaylord created the composition of the column and not just the individual soldiers. So it's... The CFC made that fact-finding. That's something we review for clear error, correct? That's right. So the government's argument is the CFC clearly aired by concluding that the contributions made by other folks don't make them joint authors. No, that's not correct, Your Honor. I'm sorry, then tell me how they clearly aired. Okay. It's not even an issue of clear error. We accept the facts that were found by the trial court. What we're arguing is that the trial court actually made three legal errors that are reviewed to NOVO in this particular case. And in fact, if you look on Appinix page A8, there's a whole list of facts that the court found that do support that institutions other than Mr. Gaylord contributed copyrightable content. That includes the ponchos, that includes the wind that was reduced from the ponchos, that includes even the age of the soldiers and the creases in the face. For example, the Veterans Advisory Board, at some point, instructed Mr. Gaylord to change the appearance of the soldier from Italian to Hispanic

. Right. So, but those are, I guess to me, that all sounds like facts. So where are those three legal errors that you're referring to? Your Honor, the three legal errors are first of all the court used the wrong standard to assess the intent of the parties. Second of all, the second legal error is that the court considered only sculptural contributions to be the sole means of contributing copyrightable content. And third, the court presumed Mr. Gaylord's ownership in the problem. And so, turning to the first legal error, the issue of intent, that's governed directly by the statute in Title 17, which says that the proper legal standard is the intent of more than one owner to combine their contributions into a unified work. That's it. So when the court sits there and it cites the dispute over the legal ownership of the column, that really has no basis as far as the intent of the parties to create one work together. But it's hard to reconcile that with the actual disclaimer of this same issue that this was a work made for hire. It's true that the statutory provisions weren't complied with in the beginning. But as you trace the evolution of the copyright through first the contractor and then the sculptor where the contractor did not pursue, call the sculptor a subcontractor, although we understand this is an artistic relationship. And it's very hard to find intent in what looks more like oversight than intent. I think to find the intent in this particular case, your honor, one need look no further than the application brochure that was given to Mr. Gaylord and Mr. Gaylord's response to this election committee. The application brochure, this is back in 1990 before he even began working on the project, said that this is a project that will be made in the collaborative environment. It's a project that will be incorporated into a large memorial where there will be other artistic works. And in response to that, this is on a Pinnix page, a 1,023-26. This is the brochure. And in response to that, Mr. Gaylord forwarded both a resume and an application statement saying, I welcome the collaborative process. I worked with committees before

. I understand that and I'm happy to do so. And so I think from the very beginning, up through certainly 1990 through 1992, the parties work together in a very collaborative environment. That's how they are. The government provide copyrightable content. And by the government, I include Cooper Locky, any of the agents of the government who have now signed over to the government. So did they provide independently copyrightable work to the memorial? Yes, your honor. They did. If you look at the seven-circuit case of Guyman versus Nick Farland. The catch posm was the only one that has ever said this. And that seven-circuit case, every other circuit has said that it has to be independently copyrightable work. And in fact, Judge Posner, in the case that you're referring to, only allowed for the possibility given that it could result that nobody could have a copyright in it, which clearly is not the case here. So you want to respond to that? I guess the point that I'm trying to make your honor isn't so much the issue of whether the contributions are independently copyrightable or not. I know there's a split between the circuits. And my argument here is that the contributions were independently copyrightable. For example, the Veterans Advisory Board provided the story, the background, the history, the ethnicity, the equipment. Yeah, but none of that's present in the stamp. None of that is part of what Mr. Gailor saw a copy right on. The only copy right that we're determining the ownership of right now are the 19 soldiers known as the column. He did not seek to copyright the backstory for the soldiers. And so the government's contributions in that regard are irrelevant to whether or not the government should be entitled to ownership of the column as a copyright. No, I disagree, Your Honor. I think all that backstory went into the creation of the column

. Do you disagree with the specific premise that his copyright does not include the backstory for the soldiers? His copyright does not include the backstory for the soldiers. But the copyright includes the rights paddies. No, it does not. So it doesn't include any of the independent contributions that you're suggesting might be entitled to independent copyright protection. No, what I'm arguing is that these independent contributions show up in what he has claimed for his copyright. When you provide a backstory that includes ethnicity and equipment and all sorts of other details, then when Mr. Gailor sculpted these soldiers, he had to do according to that backstory. If that were the case, then every time I hire someone to do a sculpture of a man on a horse looking western, I would be entitled to put my name on the copyright as co-author because I hire someone to sculpt me a man on a horse looking western. No, Your Honor. Of course not. You wouldn't send it up here and say that. So how are the suggestions that you're giving me now any different from that? It's not just the backstory, although I think that's a very significant fact. You also have to consider that these different government agencies and Cuperlecky architects, who the government got the rights from, were involved in nearly every step of the review. They reviewed not only for factors such as the backstory, but they essentially coordinated Mr. Gailor's contributions into the larger whole. And when Mr. Gailor proposed a design change that didn't fit with the story that the government agencies or Cuperlecky was trying to create, then the agencies used their decision making power and forced Mr. Gailor to adapt. What do you do with Cuperlecky's own admission that Mr. Gailor is the sole author of the column? Your Honor, I believe that issue was covered by the Davis V. Blige case from the Second Circuit, which held that some sort of agreement that takes place out of the court. After the work is created, cannot retroactively go back and change the ownership, because copyright vests when the soldier statues were first created, and that was in 1994. In 1994, they reached final precast form. This agreement that you speak of didn't take place until 1995. Why couldn't it be viewed as a relinquishment of whatever they might have had? Well, first of all, I'm going to add these other circuits. So we're going to have to address what we have here. I think one thing I'd like to point out is, well, too, and this is covered by... Why couldn't it be viewed as a relinquishment of whatever rights they thought they had? I think it could be viewed if this was the case between Cuperlecky and Mr. Gailor. It would be potentially viewed as a relinquishment of rights from Cuperlecky to Mr. Gailor. At the same time, Cuperlecky was required to give a non-exclusive license to the government as soon as any copyright vested. This was a preexisting contract between the government and Cuperlecky. As soon as copyright vested in these soldier statues in 1994 before this 1995 agreement, then Cuperlecky automatically assigned rights to the government. This was subject to contracting officer's decision, which was not appealed as well. The other thing I'd like to point out as well, too, is there's been... Before we leave that point, because it does seem as if it does reach some of the fundamental issues here, is this what the government is relying on? Not so much fair use is very difficult to attribute the classical attributes of fair use to 86 million steps. I might say the Postal Service operates at a loss, so you can't call that commercial. But the original agreement between the government and Cuperlecky was a straightforward recognition of copyright rights, set aside ownership. Is this what you're relying on primarily that those rights vested and Cuperlecky couldn't give them away? That's right, Your Honor. As soon as copyright vested in the soldier statues in 1994, Cuperlecky automatically transferred a non-exclusive license to the government for the statues. Now, the point I'd like to make as well, too, is there's been a more recent seven-circuit case called Janky versus Lake Coutty

. This agreement that you speak of didn't take place until 1995. Why couldn't it be viewed as a relinquishment of whatever they might have had? Well, first of all, I'm going to add these other circuits. So we're going to have to address what we have here. I think one thing I'd like to point out is, well, too, and this is covered by... Why couldn't it be viewed as a relinquishment of whatever rights they thought they had? I think it could be viewed if this was the case between Cuperlecky and Mr. Gailor. It would be potentially viewed as a relinquishment of rights from Cuperlecky to Mr. Gailor. At the same time, Cuperlecky was required to give a non-exclusive license to the government as soon as any copyright vested. This was a preexisting contract between the government and Cuperlecky. As soon as copyright vested in these soldier statues in 1994 before this 1995 agreement, then Cuperlecky automatically assigned rights to the government. This was subject to contracting officer's decision, which was not appealed as well. The other thing I'd like to point out as well, too, is there's been... Before we leave that point, because it does seem as if it does reach some of the fundamental issues here, is this what the government is relying on? Not so much fair use is very difficult to attribute the classical attributes of fair use to 86 million steps. I might say the Postal Service operates at a loss, so you can't call that commercial. But the original agreement between the government and Cuperlecky was a straightforward recognition of copyright rights, set aside ownership. Is this what you're relying on primarily that those rights vested and Cuperlecky couldn't give them away? That's right, Your Honor. As soon as copyright vested in the soldier statues in 1994, Cuperlecky automatically transferred a non-exclusive license to the government for the statues. Now, the point I'd like to make as well, too, is there's been a more recent seven-circuit case called Janky versus Lake Coutty. It doesn't appear in the government's brief because the issue didn't come down until several weeks thereafter. But that's at 576 F-3356. That case also stands for the proposition that you really look at intent at the time that the work was created. Here, the proper time to look at is 1994, and in fact, all the collaboration that took place before 1994, between 1990 and 1994. And then as soon as copyright vested in these soldier statues, at that point, Cuperlecky transferred a non-exclusive license to the government, as well as any copyright rights that the Veterans Advisory Board and the Commission for Fine Arts had. It's my colleagues' permission. I'd like you to move you on to fair use. You don't have a lot of time, and I really do want you to hear your argument on this. How is it that this is transformative? The Honor is transformative, essentially, under the Supreme Court's doctrine in Campbellville, the A.C.F. Rose, where the Supreme Court said it's essentially a binary inquiry. That is, does the new work merely supersede the original work, or does it add something new? Is it transformative in that it has a further purpose or a different expression? What is it? Do you think there has a further purpose? Is that what point do you think it's transformative? I think it's both a further purpose and it adds additional expression. Now note that the word or is there, so it's a conjunctive test. But the additional expression that was added by both Mr. Oli and the Postal Service is one of cold darkness, isolation, surrealism. None of these expressions appear in the original work as it is. Wait, have you seen the work? It is as cold as dark and surreal as anyone could imagine. Look at the work itself. Every adjective you just used is absolutely exemplified in this memorial. No, Your Honor. There's no snow, but if you don't think that it depicts cold, why are these men wearing ponchos? Why are they laden with everything that they're carrying? These men are much larger than life. How is that not surreal? I disagree, Your Honor

. It doesn't appear in the government's brief because the issue didn't come down until several weeks thereafter. But that's at 576 F-3356. That case also stands for the proposition that you really look at intent at the time that the work was created. Here, the proper time to look at is 1994, and in fact, all the collaboration that took place before 1994, between 1990 and 1994. And then as soon as copyright vested in these soldier statues, at that point, Cuperlecky transferred a non-exclusive license to the government, as well as any copyright rights that the Veterans Advisory Board and the Commission for Fine Arts had. It's my colleagues' permission. I'd like you to move you on to fair use. You don't have a lot of time, and I really do want you to hear your argument on this. How is it that this is transformative? The Honor is transformative, essentially, under the Supreme Court's doctrine in Campbellville, the A.C.F. Rose, where the Supreme Court said it's essentially a binary inquiry. That is, does the new work merely supersede the original work, or does it add something new? Is it transformative in that it has a further purpose or a different expression? What is it? Do you think there has a further purpose? Is that what point do you think it's transformative? I think it's both a further purpose and it adds additional expression. Now note that the word or is there, so it's a conjunctive test. But the additional expression that was added by both Mr. Oli and the Postal Service is one of cold darkness, isolation, surrealism. None of these expressions appear in the original work as it is. Wait, have you seen the work? It is as cold as dark and surreal as anyone could imagine. Look at the work itself. Every adjective you just used is absolutely exemplified in this memorial. No, Your Honor. There's no snow, but if you don't think that it depicts cold, why are these men wearing ponchos? Why are they laden with everything that they're carrying? These men are much larger than life. How is that not surreal? I disagree, Your Honor. I think the testimony that's in the record indicates that what the commission, what Cooper Lecky, what the parties were interested in depicting is the soldiers caught at a moment in time. But the parties were interested in depicting is irrelevant. The copyright is to the final product. The final product is that memorial, the column, not the Rice Patties. I shouldn't necessarily say the whole memorial because I recognize there are added features that are not covered by his copyright. But what needs to be transformed is what is in his copyright, not what the parties intended. And the only transformation I see is some snow and some blurring. In fact, the snow has covered the Rice Patties and the other independent elements that the government suggested be added. Your Honor, I think that's transformative. The expression washes out all of the color that's in the column if you walk down there today. And so it's these different feelings. If I made the Mona Lisa black and white, is there any doubt I've still infringed the copyright? In that hypothetical, you probably have infringed the copyright. Or at least it wouldn't be considered to be a transformative work on it. How can that amount to a transformation that would thereby get you out of copyright infringement? That's simply one fact of the artistic effects that were added by the... Snow, blurring, and color. That's it. There's nothing else. I think the important thing to look at your Honor is to look at what the photographer did and what the Postal Service did. They used the column. And that's not in this view. But they used it as raw material to create a new work of art with new messages

. I think the testimony that's in the record indicates that what the commission, what Cooper Lecky, what the parties were interested in depicting is the soldiers caught at a moment in time. But the parties were interested in depicting is irrelevant. The copyright is to the final product. The final product is that memorial, the column, not the Rice Patties. I shouldn't necessarily say the whole memorial because I recognize there are added features that are not covered by his copyright. But what needs to be transformed is what is in his copyright, not what the parties intended. And the only transformation I see is some snow and some blurring. In fact, the snow has covered the Rice Patties and the other independent elements that the government suggested be added. Your Honor, I think that's transformative. The expression washes out all of the color that's in the column if you walk down there today. And so it's these different feelings. If I made the Mona Lisa black and white, is there any doubt I've still infringed the copyright? In that hypothetical, you probably have infringed the copyright. Or at least it wouldn't be considered to be a transformative work on it. How can that amount to a transformation that would thereby get you out of copyright infringement? That's simply one fact of the artistic effects that were added by the... Snow, blurring, and color. That's it. There's nothing else. I think the important thing to look at your Honor is to look at what the photographer did and what the Postal Service did. They used the column. And that's not in this view. But they used it as raw material to create a new work of art with new messages. And you work of art. Council to stamp itself says Korean War Memorial on it. There can be no dispute with they were attempting to convey. They weren't attempting to fool you into believing this was something different than what it actually was. But it's a view of the Korean War Veterans Memorial in a particular setting with a particular message that comes across. That isn't present if you were to just go down to the mall right now and look at the column. Because it didn't snow today? No, it's more than that, Your Honor. It's capturing that moment in the snow with the subdued lighting and the particular perspective and the blurringness. Now all those individually don't sound light much. But essentially what is any other form of art except for a particular capture of a moment in time? Because I haven't seen any copyright case that would allow something so insignificant as blurred, a slight blur and snow to amount to a transformation that would take an otherwise commercial use of someone's clearly clear copyright and make it a fair use. I mean, I'm looking at all these other cases and they take shoes and make a mockery. I take a picture of shoes and make a mockery of them. It's parody, it's comedy, it's the transformation that I see that's present in all of these other cases is so severe as compared to what you're arguing that I feel like we would be an island unto ourselves as a circuit if we were to say this amount of to transformative. So let me give you a chance to respond because I know your time's up. I have to assure you that we haven't reached a decision. Thank you, Your Honor. They're not easy. They're quite complex. We need to appreciate what we're dealing with is a picture of a picture which is not exactly that which that which was created by the sculpture. He didn't create the snow. He didn't create the design on the stamp. That's correct, Your Honor. I think, Your Honor, if you look at the Bill Graham archives case from the second circuit, they're the use the grateful dead posters and they were not commenting on the grateful dead posters

. And you work of art. Council to stamp itself says Korean War Memorial on it. There can be no dispute with they were attempting to convey. They weren't attempting to fool you into believing this was something different than what it actually was. But it's a view of the Korean War Veterans Memorial in a particular setting with a particular message that comes across. That isn't present if you were to just go down to the mall right now and look at the column. Because it didn't snow today? No, it's more than that, Your Honor. It's capturing that moment in the snow with the subdued lighting and the particular perspective and the blurringness. Now all those individually don't sound light much. But essentially what is any other form of art except for a particular capture of a moment in time? Because I haven't seen any copyright case that would allow something so insignificant as blurred, a slight blur and snow to amount to a transformation that would take an otherwise commercial use of someone's clearly clear copyright and make it a fair use. I mean, I'm looking at all these other cases and they take shoes and make a mockery. I take a picture of shoes and make a mockery of them. It's parody, it's comedy, it's the transformation that I see that's present in all of these other cases is so severe as compared to what you're arguing that I feel like we would be an island unto ourselves as a circuit if we were to say this amount of to transformative. So let me give you a chance to respond because I know your time's up. I have to assure you that we haven't reached a decision. Thank you, Your Honor. They're not easy. They're quite complex. We need to appreciate what we're dealing with is a picture of a picture which is not exactly that which that which was created by the sculpture. He didn't create the snow. He didn't create the design on the stamp. That's correct, Your Honor. I think, Your Honor, if you look at the Bill Graham archives case from the second circuit, they're the use the grateful dead posters and they were not commenting on the grateful dead posters. They were simply using them as historical artifacts to help explain their purpose. So if your focus is basically does the stamp talk about the original or parody it or make out there's some comment about the original? It does. But again, looking at the Campbell versus A.C. have froze the under. You cited the Bill Graham case and we make sure you understand, wasn't that sort of a commentary or criticism use of those posters? Wasn't it deemed to be? No, Your Honor. Or I believe it could have been considered to be a comment. A commentary. That's correct. That's correct. And these posters were sort of one thing in a much larger volume, right? That's right. Exactly. Let me take you back to the contracts because it seems that it was quite clear that as far as the contract between the government and Cooper Lecky is concerned. This use would be permitted that the copyright values flowed when there turned out to be the relationship, the tardy relationship with the sculpture and then its cancellation. Remind us how you believe is a matter of law that affected the transfers to the government, or at least the copyright license to the government? Your Honor. Essentially, the government got all the rights from Cooper Lecky based on the preexisting contract between the Army Corps of Engineers and Cooper Lecky. Now, Cooper Lecky and Mr. Gaylord had a few different agreements. The first few said, you know, we'll defer the issue of copyright ownership. Then ultimately in 1995, Cooper Lecky said, you have the copyright rights and the statues and we have the rights and the memorials whole. But it doesn't really affect our argument because our argument based on joint ownership is based on the fact that the copyright vested in these statues in 1994. And up until 1994, the parties had been coming together, they had been collaborating, they had been fusing all their contributions into this unified whole, both the column and the memorial, which the column sits. So that's my explanation

. They were simply using them as historical artifacts to help explain their purpose. So if your focus is basically does the stamp talk about the original or parody it or make out there's some comment about the original? It does. But again, looking at the Campbell versus A.C. have froze the under. You cited the Bill Graham case and we make sure you understand, wasn't that sort of a commentary or criticism use of those posters? Wasn't it deemed to be? No, Your Honor. Or I believe it could have been considered to be a comment. A commentary. That's correct. That's correct. And these posters were sort of one thing in a much larger volume, right? That's right. Exactly. Let me take you back to the contracts because it seems that it was quite clear that as far as the contract between the government and Cooper Lecky is concerned. This use would be permitted that the copyright values flowed when there turned out to be the relationship, the tardy relationship with the sculpture and then its cancellation. Remind us how you believe is a matter of law that affected the transfers to the government, or at least the copyright license to the government? Your Honor. Essentially, the government got all the rights from Cooper Lecky based on the preexisting contract between the Army Corps of Engineers and Cooper Lecky. Now, Cooper Lecky and Mr. Gaylord had a few different agreements. The first few said, you know, we'll defer the issue of copyright ownership. Then ultimately in 1995, Cooper Lecky said, you have the copyright rights and the statues and we have the rights and the memorials whole. But it doesn't really affect our argument because our argument based on joint ownership is based on the fact that the copyright vested in these statues in 1994. And up until 1994, the parties had been coming together, they had been collaborating, they had been fusing all their contributions into this unified whole, both the column and the memorial, which the column sits. So that's my explanation. Thank you. Any more questions? Any more questions? Thank you, Mr. Golden. Mr. Fletcher, for the rebuttal time. Thank you, Your Honor. The case I was talking about earlier was the community for creative non-violence versus breed for 90 US 730, 1898. And at page 20 of our reply brief, there is a picture of the sculpture involved in that case. That was the case that held that word made for hire was basically by agency principles. And that whether you're not to pay social security in the light is a critical factor, all of which work against the government here. With respect to what is shown as the so-called joint authorship here, what we have at best is a contribution of ideas, which and ideas are not copyrightable subject matter. It's the expression of the ideas. That goes all the way back to Blastine against Donaldson lithographic, which was an old case even when I was in law school. Can I ask you a couple of questions? So if I take a photograph of the memorial, I'm violating Mr. Gaylord's copyright. Move. Okay, I'm sorry. Let's assume that every photograph I'm about to take in my various hypotheticals, I am selling for a profit. Okay? On the internet, 10,000 copies selling it. I take a photograph of Mr. Gaylord's column. I'm copyright infringing. With the caveat that I would have to see the photograph, it's possible that you wouldn't, I suppose, under certain circumstances, if you had a baby in the foreground, something like that

. Thank you. Any more questions? Any more questions? Thank you, Mr. Golden. Mr. Fletcher, for the rebuttal time. Thank you, Your Honor. The case I was talking about earlier was the community for creative non-violence versus breed for 90 US 730, 1898. And at page 20 of our reply brief, there is a picture of the sculpture involved in that case. That was the case that held that word made for hire was basically by agency principles. And that whether you're not to pay social security in the light is a critical factor, all of which work against the government here. With respect to what is shown as the so-called joint authorship here, what we have at best is a contribution of ideas, which and ideas are not copyrightable subject matter. It's the expression of the ideas. That goes all the way back to Blastine against Donaldson lithographic, which was an old case even when I was in law school. Can I ask you a couple of questions? So if I take a photograph of the memorial, I'm violating Mr. Gaylord's copyright. Move. Okay, I'm sorry. Let's assume that every photograph I'm about to take in my various hypotheticals, I am selling for a profit. Okay? On the internet, 10,000 copies selling it. I take a photograph of Mr. Gaylord's column. I'm copyright infringing. With the caveat that I would have to see the photograph, it's possible that you wouldn't, I suppose, under certain circumstances, if you had a baby in the foreground, something like that. I see. But no, I'm just taking a photograph of the column. Nobody's there. Just taking a photograph. Now, does it matter whether I take it at dawn or at sunset? Am I to the copyright infringement? No, of course not, because... No, no, no, no, no, no, of course not, because you're still taking a picture of the work. And if you're taking it in the environment in which it was intended to be displayed and is displayed. Now, these photographs, just so I know, suppose that the government filed its own copyright on the memorial, including the rice paddies and various other contributions as opposed to the column. So it filed its own copyright on the collective memorial, maybe sign in front that indicates things, the rice paddies, maybe other things. And so now, if I take that photograph, am I violating their copyright? Maybe. I'd have to say the photographs. Am I also violating your copyright at the same time? Surely. So it's possible I would be violating two copyrights. And even if the government gave me their authority to go ahead and violate their copyright, it doesn't ultimately... Sure. By the same token that some of the derivative works from Gone with the Wind have been accused of copyright, both by Metro Golden, Mayor of the Magical, and Movies. And whatever that lady's name was who wrote the book or whoever holds her copyright rights now. There's no clear indication of any contribution of a copyrightable element by Gaylord. Simply saying make the face Hispanic instead of Italian is much more of an idea than it is the expression of an idea

. I see. But no, I'm just taking a photograph of the column. Nobody's there. Just taking a photograph. Now, does it matter whether I take it at dawn or at sunset? Am I to the copyright infringement? No, of course not, because... No, no, no, no, no, no, of course not, because you're still taking a picture of the work. And if you're taking it in the environment in which it was intended to be displayed and is displayed. Now, these photographs, just so I know, suppose that the government filed its own copyright on the memorial, including the rice paddies and various other contributions as opposed to the column. So it filed its own copyright on the collective memorial, maybe sign in front that indicates things, the rice paddies, maybe other things. And so now, if I take that photograph, am I violating their copyright? Maybe. I'd have to say the photographs. Am I also violating your copyright at the same time? Surely. So it's possible I would be violating two copyrights. And even if the government gave me their authority to go ahead and violate their copyright, it doesn't ultimately... Sure. By the same token that some of the derivative works from Gone with the Wind have been accused of copyright, both by Metro Golden, Mayor of the Magical, and Movies. And whatever that lady's name was who wrote the book or whoever holds her copyright rights now. There's no clear indication of any contribution of a copyrightable element by Gaylord. Simply saying make the face Hispanic instead of Italian is much more of an idea than it is the expression of an idea. And aside from that, the person who made the face Hispanic rather than Italian at the direction of Lucky was the sculptor. And it's his expression, which is the copyrighted thing, not the general idea that this will be a person of certain ethnicity. The court below noted that whatever rights may have been between Cooper Lucky and...or Lucky, I guess, and the government did not necessarily flow down to... The agreement with Mr. Gaylord. I think this is...I've heard of third-party beneficiary arguments. I think this is a third-party victim argument that brought him back. I know a basis for it. Finally with... We need to wrap it up if he would be... I was going to say if I had one more sentence

. And aside from that, the person who made the face Hispanic rather than Italian at the direction of Lucky was the sculptor. And it's his expression, which is the copyrighted thing, not the general idea that this will be a person of certain ethnicity. The court below noted that whatever rights may have been between Cooper Lucky and...or Lucky, I guess, and the government did not necessarily flow down to... The agreement with Mr. Gaylord. I think this is...I've heard of third-party beneficiary arguments. I think this is a third-party victim argument that brought him back. I know a basis for it. Finally with... We need to wrap it up if he would be... I was going to say if I had one more sentence. Yes. I think the most telling thing in this case as to whether or not the substance and there is an infringement of Colby right in what is charges and infringement the stamp here is that if you look at the stamp, there is absolutely no stamp without the column. That's the...it's...I'm sorry I made my second sentence. I think I should. Thank you very much. Okay. Thank you Mr. Fletcher. Mr. Boudin. Case is taken under submission. The court is adjourned tomorrow morning at 10 o'clock in the evening.

The next case is number 09-544, Gailor against the United States. Mr. Fletcher, when you're ready. Good morning, Your Honor. May it please the Court? The principle, and I think only significant error of the Court below, is it's ruling that the U.S. Postal Service stamp represents a fair use of Mr. Gailor's copyrighted sculptural work. There's no dispute that the column is a sculptural work, sculptured by Mr. Gailor, 1977 and a half-foot high soldiers in a column. There's no dispute that it is covered by a number of copyrights. A very good picture of the copyrighted property can be found at page 15 of a Pellens brief, also Appendix 1592. That's the picture that appears on the government's stamp. They didn't copy the statues, they copied a picture of the statues. What is there a distinction that you believe should be erased? No, I don't think that's a distinction at all, Your Honor, because the copyrighted work is the statute. The infringement is the picture as it appears on the postage stamp. The post there was an interim picture taken originally at least as a gift for the photographers father, which would plainly be a fair use under the non-commercial and exception. There was no problem with that. The fact that the picture was the source of the image used by the Postal Service, I suppose relevant but not material is the technical legal phrase here. Just to understand is that because the photograph may be a derivative work to which the taker is entitled to copyright protection, but that does not in any way prevent the original creator of the column from his entitlement to copyright protection over his creation. If the government wants to take this picture and make it into a stamp, they've got to pay two piper's. They've got to pay the guy who took the picture and they've got to pay the guy who created the statute, because both hold independent property rights. That would be my argument, frankly, I'm not terribly concerned about the picture taker because I represent the person who's right was infringed by the government. But yes, that is right. The government recognized that in respect to the person who took the picture and the person who took the picture told them that they needed to get permission from the holder of the underlying right. The government plainly recognizes that it has to get permission to use copyrighted works, but they just ignore it. And Luzal was a pretty significant loss of income and... Could I get you to focus on the fair use factor, factor number one, the purpose and character of the use, and in particular whether or not the photograph, well, whether or not the stamp was transformative, such that this would tend more towards a fair use or that that factor would tend more towards a fair use. I believe if you compare the original statute and the stamp, which unquestionably is a derivative work, no matter how it was derived, because that is a very nice picture of the statute and the stamp, the statute, the sculptural work. Okay. Transformative is a difficult concept to deal with here because it's both a dictionary word and it is sometimes used as a word of art for fair use. And the Supreme Court and Campbell against Ake of Rose tends to use it in both respects when it talks about a degree of transformativeness or how transformative is the document. Now your question, Your Honor, I think was, where does it tend on the scale of transformative the answer would be very much against fair use. If you want to see what is transformative, the purpose is a fair use. I can give you a couple of examples, perhaps, a pretty woman from the Ake of Rose case, the original. I guess I'll go on home, it's late. They'll be tomorrow night, but wait. Again, we're talking only about the lyrics, nothing to let you. I guess I'll go on home, and they'll be tomorrow night, but wait, what do I see? Is she walking back to me? Yeah, she's walking back to me. Oh, pretty woman. Because two-time and woman, girl, you know you ain't right. Two-time and woman. I want to interrupt your argument because you're talking about copying of that which was copyrighted. What I'm trying to understand is the difference between copying a picture and a picture of the copyrighted work, which is a work of art, a work of sculpture. And actually copying the sculpture itself. Where does the sculpture allow that... The copying of the sculpture, your honor, is a derivative work. They didn't copy the sculpture. They... I'm sorry, the copying of the sculpture by photography. There'd be no problem if they had just copied the sculpture and were selling the sculpture or models of the sculpture. That's not the issue. That's clearly infringement. Yes. The photographing of the sculpture is a derivative work under section 1-0. The definition section under 1-1, a work based on one or more pre-existing works, which in a non-mock quoting exactly now here, in some form recast, transforms or adapts the original. The copy right owner has the exclusive right to make a derivative work, which in this case the stamp plainly is, with and of course here's the rub that gets us into the courthouse right today, unless the copy is a fair use under section 1-0-7. When we see these uncertainties in the evolution of the statue was resolved in connection with works of architecture. So these are the principles that you think need to be applied here. I beg your pardon, your honor. This is not a work of architecture. This is a work of sculpture. Precisely. That's why I was wondering about the applicability of the principles where the blueprints would have been covered. Here we have a photograph of an original work of art, setting aside the ownership of that work of art as opposed to the ownership of the copyright to the work of art, which I think is a question that may need to be confronted along the way. There's no question that Mr. Gaylord does not own the statues. Is that right? He only owns the copyright. Mr. Gaylord only owns the copyright, but that nevertheless, as a matter of pre-muffetia right under the copyright statute, gives him and him alone the right to prevent infringements of it. Because of the absence of work for hire, is that the reason? No, it's not. It's got nothing to do with work for hire. Whether this is a work for hire or not is not an issue in this case. If he worked for hire, he wouldn't be able to control the copyright, would he? No, he wouldn't, but this is not an argument that the government has made. It's not an argument that anybody else has made, and the government, nobody to, moment, made any effort to stop. But there's no question as to who owns the statues, is that right? The statues themselves. As between the United States government, the United States Army, there are a number of people in there. There's no question that ownership of the physical statutes no longer resides in Mr. Gaylord. That's your point, but that's not relevant to the copyright infringement. He owns the copyright. That is correct. So ownership of the statutes has no bearing on this case. Correct. That's my position, yes. I know what's the number of the position also. Unless they come up with a new argument this morning. So is it true that the lower court never looked at the commercial use of the stamps in connection with factor number one for the fair use analysis? Well, commercial, commercial use bears on the fair use analysis. It's one of four factors. Well, it's articulated in number one, and I thought I understood one of your arguments to be that the lower court didn't properly consider or take into account. The fact that the government was selling stamps for a profit, i.e. this was a commercial use when it analyzed factor number one. Am I misunderstanding one of your arguments? I think it's factor number four, but other than that, you're not misunderstanding it. Factor number one under the statutes says the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education. Number four, which used to be the primary one, is the one that is more commercial. Commercial act, commerciality is a part of factor one, you're correct. And I didn't see anything in the lower court's opinion that took into account commercial nature of the use with regard to its analysis under factor number one. Is that correct? Am I wrong about that? I don't recall anything. I believe you're correct, yes. So to pursue your comment on commerciality, is this the distinction you're wrong? You're not saying that a visitor to this site can take a photograph. Of course not. Of course not. So that there was a lot of fact yesterday afternoon, there were dozens of them when we were there, neither was tried to stop any of your arguments. Now, where is the distinguishing between copyright violation and this threshold display of a national monument? The distinction between the copyright infringement and the taking of a photograph is that while the photograph is always a derivative work, it plainly falls. The photographs we were seeing taken at least could be expected to fall within the fair use exception because there was no commercial intention, whatever. Most of them were of family members or friends or whatever standing in front of the statue or kneeling down or something like that and posing before it. And these things are going to be taken maybe half a dozen prints made and sent the family friends, but that's it. And that's sold, which is a critical distinction. I imagine you would draw. If I set up, took my camera out there, took a photograph and proceeded to sell 10,000 copies of it on the internet in the form of posters or any other display, you would consider that to be inappropriate copyright. Certainly, you would hear from Ms. Harvey, but you'd hear from one of us if we found out about it. And before you were done, did you touch on the joint authorship matter? Why aren't some of the people who are making recommending the changes that he agreed to join authors? The main question here, the main answer to that, or your honor, is that this is not a work of joint authorship because the government, well, the first place is no other. There's no evidence that any other person contributed any of the copyrightable subject matter here. Second, the court found that Mr. Lackie's testimony as to getting in there and tinkering with the ponchos and the way they looked on the statues was simply, you know, apparently a. Law or a fault or a memory or something because the invoices pretty clearly showed that what he said he thought he had done was impossible. The statues were elsewhere at the time he supposedly worked on. The government says that they were wearing the capes, the expressions on the faces, the. They said they, and so on that there was significant contribution. You say none of that contributed to the copyrightable nature, but. I would say it was direction, which almost anybody who accepts a commission for a work will take. He certainly talked with him, but he himself did all or he and the people he employed did all. No, the physical work. You say except the commission, but the issue doesn't arise if it's treated as a work made for hire, so we wouldn't really know. Have recently to pass the real. I believe your honor that under the standards of the case, the man, the name of which my escapes my memory at the moment. This was clearly not a work for hire. They made these people were not paying him a salary. They weren't furnishing it in his workspace. This is the work paying medical benefits or social security. Was he paid for the sculpture? Sure, but that's not the measure of since the Supreme Court dealt with the subject. I know I was sometimes when I was with the only prior law firm, which was more than a dozen years ago in landmark case on what is a work made for hire. It's determined by agency principles, basically. And if I heard the name of it, that's not the test, whether you get paid for your work and whether it's a work made for hire are fairly far different. I'm a specter. Let's hear from the other side and we'll save you a little time. Oh, excuse me. May I wake one more point and answer the question? Mr. Lucky and behalf of the government acknowledged, and this is on paragraph one of joint appendix 1171, that Gaylord is the sole author of the call of the sculpture. Okay. Thank you. Mr. Bowden. That's right. May I please the court? The fair use doctrine recognizes... But it would be convenient if I had to start backwards because we're all kind of right now fresh on the authorship issue. Would it be okay if you started there? Sure. Okay. So the government has a cross appeal on the lower courts or determination of whether or not Mr. Gaylord is entitled to sole ownership or sole copyright ownership. Is that right? Your Honor, I wouldn't characterize it as a cross appeal, but yes, we are challenging that a joint owner of... Exactly. Exactly. We are arguing that a joint owner of both the column and the memorial as a whole granted the government whites in both of those works. The CFC found that Mr. Gaylord created the composition of the column and not just the individual soldiers. So it's... The CFC made that fact-finding. That's something we review for clear error, correct? That's right. So the government's argument is the CFC clearly aired by concluding that the contributions made by other folks don't make them joint authors. No, that's not correct, Your Honor. I'm sorry, then tell me how they clearly aired. Okay. It's not even an issue of clear error. We accept the facts that were found by the trial court. What we're arguing is that the trial court actually made three legal errors that are reviewed to NOVO in this particular case. And in fact, if you look on Appinix page A8, there's a whole list of facts that the court found that do support that institutions other than Mr. Gaylord contributed copyrightable content. That includes the ponchos, that includes the wind that was reduced from the ponchos, that includes even the age of the soldiers and the creases in the face. For example, the Veterans Advisory Board, at some point, instructed Mr. Gaylord to change the appearance of the soldier from Italian to Hispanic. Right. So, but those are, I guess to me, that all sounds like facts. So where are those three legal errors that you're referring to? Your Honor, the three legal errors are first of all the court used the wrong standard to assess the intent of the parties. Second of all, the second legal error is that the court considered only sculptural contributions to be the sole means of contributing copyrightable content. And third, the court presumed Mr. Gaylord's ownership in the problem. And so, turning to the first legal error, the issue of intent, that's governed directly by the statute in Title 17, which says that the proper legal standard is the intent of more than one owner to combine their contributions into a unified work. That's it. So when the court sits there and it cites the dispute over the legal ownership of the column, that really has no basis as far as the intent of the parties to create one work together. But it's hard to reconcile that with the actual disclaimer of this same issue that this was a work made for hire. It's true that the statutory provisions weren't complied with in the beginning. But as you trace the evolution of the copyright through first the contractor and then the sculptor where the contractor did not pursue, call the sculptor a subcontractor, although we understand this is an artistic relationship. And it's very hard to find intent in what looks more like oversight than intent. I think to find the intent in this particular case, your honor, one need look no further than the application brochure that was given to Mr. Gaylord and Mr. Gaylord's response to this election committee. The application brochure, this is back in 1990 before he even began working on the project, said that this is a project that will be made in the collaborative environment. It's a project that will be incorporated into a large memorial where there will be other artistic works. And in response to that, this is on a Pinnix page, a 1,023-26. This is the brochure. And in response to that, Mr. Gaylord forwarded both a resume and an application statement saying, I welcome the collaborative process. I worked with committees before. I understand that and I'm happy to do so. And so I think from the very beginning, up through certainly 1990 through 1992, the parties work together in a very collaborative environment. That's how they are. The government provide copyrightable content. And by the government, I include Cooper Locky, any of the agents of the government who have now signed over to the government. So did they provide independently copyrightable work to the memorial? Yes, your honor. They did. If you look at the seven-circuit case of Guyman versus Nick Farland. The catch posm was the only one that has ever said this. And that seven-circuit case, every other circuit has said that it has to be independently copyrightable work. And in fact, Judge Posner, in the case that you're referring to, only allowed for the possibility given that it could result that nobody could have a copyright in it, which clearly is not the case here. So you want to respond to that? I guess the point that I'm trying to make your honor isn't so much the issue of whether the contributions are independently copyrightable or not. I know there's a split between the circuits. And my argument here is that the contributions were independently copyrightable. For example, the Veterans Advisory Board provided the story, the background, the history, the ethnicity, the equipment. Yeah, but none of that's present in the stamp. None of that is part of what Mr. Gailor saw a copy right on. The only copy right that we're determining the ownership of right now are the 19 soldiers known as the column. He did not seek to copyright the backstory for the soldiers. And so the government's contributions in that regard are irrelevant to whether or not the government should be entitled to ownership of the column as a copyright. No, I disagree, Your Honor. I think all that backstory went into the creation of the column. Do you disagree with the specific premise that his copyright does not include the backstory for the soldiers? His copyright does not include the backstory for the soldiers. But the copyright includes the rights paddies. No, it does not. So it doesn't include any of the independent contributions that you're suggesting might be entitled to independent copyright protection. No, what I'm arguing is that these independent contributions show up in what he has claimed for his copyright. When you provide a backstory that includes ethnicity and equipment and all sorts of other details, then when Mr. Gailor sculpted these soldiers, he had to do according to that backstory. If that were the case, then every time I hire someone to do a sculpture of a man on a horse looking western, I would be entitled to put my name on the copyright as co-author because I hire someone to sculpt me a man on a horse looking western. No, Your Honor. Of course not. You wouldn't send it up here and say that. So how are the suggestions that you're giving me now any different from that? It's not just the backstory, although I think that's a very significant fact. You also have to consider that these different government agencies and Cuperlecky architects, who the government got the rights from, were involved in nearly every step of the review. They reviewed not only for factors such as the backstory, but they essentially coordinated Mr. Gailor's contributions into the larger whole. And when Mr. Gailor proposed a design change that didn't fit with the story that the government agencies or Cuperlecky was trying to create, then the agencies used their decision making power and forced Mr. Gailor to adapt. What do you do with Cuperlecky's own admission that Mr. Gailor is the sole author of the column? Your Honor, I believe that issue was covered by the Davis V. Blige case from the Second Circuit, which held that some sort of agreement that takes place out of the court. After the work is created, cannot retroactively go back and change the ownership, because copyright vests when the soldier statues were first created, and that was in 1994. In 1994, they reached final precast form. This agreement that you speak of didn't take place until 1995. Why couldn't it be viewed as a relinquishment of whatever they might have had? Well, first of all, I'm going to add these other circuits. So we're going to have to address what we have here. I think one thing I'd like to point out is, well, too, and this is covered by... Why couldn't it be viewed as a relinquishment of whatever rights they thought they had? I think it could be viewed if this was the case between Cuperlecky and Mr. Gailor. It would be potentially viewed as a relinquishment of rights from Cuperlecky to Mr. Gailor. At the same time, Cuperlecky was required to give a non-exclusive license to the government as soon as any copyright vested. This was a preexisting contract between the government and Cuperlecky. As soon as copyright vested in these soldier statues in 1994 before this 1995 agreement, then Cuperlecky automatically assigned rights to the government. This was subject to contracting officer's decision, which was not appealed as well. The other thing I'd like to point out as well, too, is there's been... Before we leave that point, because it does seem as if it does reach some of the fundamental issues here, is this what the government is relying on? Not so much fair use is very difficult to attribute the classical attributes of fair use to 86 million steps. I might say the Postal Service operates at a loss, so you can't call that commercial. But the original agreement between the government and Cuperlecky was a straightforward recognition of copyright rights, set aside ownership. Is this what you're relying on primarily that those rights vested and Cuperlecky couldn't give them away? That's right, Your Honor. As soon as copyright vested in the soldier statues in 1994, Cuperlecky automatically transferred a non-exclusive license to the government for the statues. Now, the point I'd like to make as well, too, is there's been a more recent seven-circuit case called Janky versus Lake Coutty. It doesn't appear in the government's brief because the issue didn't come down until several weeks thereafter. But that's at 576 F-3356. That case also stands for the proposition that you really look at intent at the time that the work was created. Here, the proper time to look at is 1994, and in fact, all the collaboration that took place before 1994, between 1990 and 1994. And then as soon as copyright vested in these soldier statues, at that point, Cuperlecky transferred a non-exclusive license to the government, as well as any copyright rights that the Veterans Advisory Board and the Commission for Fine Arts had. It's my colleagues' permission. I'd like you to move you on to fair use. You don't have a lot of time, and I really do want you to hear your argument on this. How is it that this is transformative? The Honor is transformative, essentially, under the Supreme Court's doctrine in Campbellville, the A.C.F. Rose, where the Supreme Court said it's essentially a binary inquiry. That is, does the new work merely supersede the original work, or does it add something new? Is it transformative in that it has a further purpose or a different expression? What is it? Do you think there has a further purpose? Is that what point do you think it's transformative? I think it's both a further purpose and it adds additional expression. Now note that the word or is there, so it's a conjunctive test. But the additional expression that was added by both Mr. Oli and the Postal Service is one of cold darkness, isolation, surrealism. None of these expressions appear in the original work as it is. Wait, have you seen the work? It is as cold as dark and surreal as anyone could imagine. Look at the work itself. Every adjective you just used is absolutely exemplified in this memorial. No, Your Honor. There's no snow, but if you don't think that it depicts cold, why are these men wearing ponchos? Why are they laden with everything that they're carrying? These men are much larger than life. How is that not surreal? I disagree, Your Honor. I think the testimony that's in the record indicates that what the commission, what Cooper Lecky, what the parties were interested in depicting is the soldiers caught at a moment in time. But the parties were interested in depicting is irrelevant. The copyright is to the final product. The final product is that memorial, the column, not the Rice Patties. I shouldn't necessarily say the whole memorial because I recognize there are added features that are not covered by his copyright. But what needs to be transformed is what is in his copyright, not what the parties intended. And the only transformation I see is some snow and some blurring. In fact, the snow has covered the Rice Patties and the other independent elements that the government suggested be added. Your Honor, I think that's transformative. The expression washes out all of the color that's in the column if you walk down there today. And so it's these different feelings. If I made the Mona Lisa black and white, is there any doubt I've still infringed the copyright? In that hypothetical, you probably have infringed the copyright. Or at least it wouldn't be considered to be a transformative work on it. How can that amount to a transformation that would thereby get you out of copyright infringement? That's simply one fact of the artistic effects that were added by the... Snow, blurring, and color. That's it. There's nothing else. I think the important thing to look at your Honor is to look at what the photographer did and what the Postal Service did. They used the column. And that's not in this view. But they used it as raw material to create a new work of art with new messages. And you work of art. Council to stamp itself says Korean War Memorial on it. There can be no dispute with they were attempting to convey. They weren't attempting to fool you into believing this was something different than what it actually was. But it's a view of the Korean War Veterans Memorial in a particular setting with a particular message that comes across. That isn't present if you were to just go down to the mall right now and look at the column. Because it didn't snow today? No, it's more than that, Your Honor. It's capturing that moment in the snow with the subdued lighting and the particular perspective and the blurringness. Now all those individually don't sound light much. But essentially what is any other form of art except for a particular capture of a moment in time? Because I haven't seen any copyright case that would allow something so insignificant as blurred, a slight blur and snow to amount to a transformation that would take an otherwise commercial use of someone's clearly clear copyright and make it a fair use. I mean, I'm looking at all these other cases and they take shoes and make a mockery. I take a picture of shoes and make a mockery of them. It's parody, it's comedy, it's the transformation that I see that's present in all of these other cases is so severe as compared to what you're arguing that I feel like we would be an island unto ourselves as a circuit if we were to say this amount of to transformative. So let me give you a chance to respond because I know your time's up. I have to assure you that we haven't reached a decision. Thank you, Your Honor. They're not easy. They're quite complex. We need to appreciate what we're dealing with is a picture of a picture which is not exactly that which that which was created by the sculpture. He didn't create the snow. He didn't create the design on the stamp. That's correct, Your Honor. I think, Your Honor, if you look at the Bill Graham archives case from the second circuit, they're the use the grateful dead posters and they were not commenting on the grateful dead posters. They were simply using them as historical artifacts to help explain their purpose. So if your focus is basically does the stamp talk about the original or parody it or make out there's some comment about the original? It does. But again, looking at the Campbell versus A.C. have froze the under. You cited the Bill Graham case and we make sure you understand, wasn't that sort of a commentary or criticism use of those posters? Wasn't it deemed to be? No, Your Honor. Or I believe it could have been considered to be a comment. A commentary. That's correct. That's correct. And these posters were sort of one thing in a much larger volume, right? That's right. Exactly. Let me take you back to the contracts because it seems that it was quite clear that as far as the contract between the government and Cooper Lecky is concerned. This use would be permitted that the copyright values flowed when there turned out to be the relationship, the tardy relationship with the sculpture and then its cancellation. Remind us how you believe is a matter of law that affected the transfers to the government, or at least the copyright license to the government? Your Honor. Essentially, the government got all the rights from Cooper Lecky based on the preexisting contract between the Army Corps of Engineers and Cooper Lecky. Now, Cooper Lecky and Mr. Gaylord had a few different agreements. The first few said, you know, we'll defer the issue of copyright ownership. Then ultimately in 1995, Cooper Lecky said, you have the copyright rights and the statues and we have the rights and the memorials whole. But it doesn't really affect our argument because our argument based on joint ownership is based on the fact that the copyright vested in these statues in 1994. And up until 1994, the parties had been coming together, they had been collaborating, they had been fusing all their contributions into this unified whole, both the column and the memorial, which the column sits. So that's my explanation. Thank you. Any more questions? Any more questions? Thank you, Mr. Golden. Mr. Fletcher, for the rebuttal time. Thank you, Your Honor. The case I was talking about earlier was the community for creative non-violence versus breed for 90 US 730, 1898. And at page 20 of our reply brief, there is a picture of the sculpture involved in that case. That was the case that held that word made for hire was basically by agency principles. And that whether you're not to pay social security in the light is a critical factor, all of which work against the government here. With respect to what is shown as the so-called joint authorship here, what we have at best is a contribution of ideas, which and ideas are not copyrightable subject matter. It's the expression of the ideas. That goes all the way back to Blastine against Donaldson lithographic, which was an old case even when I was in law school. Can I ask you a couple of questions? So if I take a photograph of the memorial, I'm violating Mr. Gaylord's copyright. Move. Okay, I'm sorry. Let's assume that every photograph I'm about to take in my various hypotheticals, I am selling for a profit. Okay? On the internet, 10,000 copies selling it. I take a photograph of Mr. Gaylord's column. I'm copyright infringing. With the caveat that I would have to see the photograph, it's possible that you wouldn't, I suppose, under certain circumstances, if you had a baby in the foreground, something like that. I see. But no, I'm just taking a photograph of the column. Nobody's there. Just taking a photograph. Now, does it matter whether I take it at dawn or at sunset? Am I to the copyright infringement? No, of course not, because... No, no, no, no, no, no, of course not, because you're still taking a picture of the work. And if you're taking it in the environment in which it was intended to be displayed and is displayed. Now, these photographs, just so I know, suppose that the government filed its own copyright on the memorial, including the rice paddies and various other contributions as opposed to the column. So it filed its own copyright on the collective memorial, maybe sign in front that indicates things, the rice paddies, maybe other things. And so now, if I take that photograph, am I violating their copyright? Maybe. I'd have to say the photographs. Am I also violating your copyright at the same time? Surely. So it's possible I would be violating two copyrights. And even if the government gave me their authority to go ahead and violate their copyright, it doesn't ultimately... Sure. By the same token that some of the derivative works from Gone with the Wind have been accused of copyright, both by Metro Golden, Mayor of the Magical, and Movies. And whatever that lady's name was who wrote the book or whoever holds her copyright rights now. There's no clear indication of any contribution of a copyrightable element by Gaylord. Simply saying make the face Hispanic instead of Italian is much more of an idea than it is the expression of an idea. And aside from that, the person who made the face Hispanic rather than Italian at the direction of Lucky was the sculptor. And it's his expression, which is the copyrighted thing, not the general idea that this will be a person of certain ethnicity. The court below noted that whatever rights may have been between Cooper Lucky and...or Lucky, I guess, and the government did not necessarily flow down to... The agreement with Mr. Gaylord. I think this is...I've heard of third-party beneficiary arguments. I think this is a third-party victim argument that brought him back. I know a basis for it. Finally with... We need to wrap it up if he would be... I was going to say if I had one more sentence. Yes. I think the most telling thing in this case as to whether or not the substance and there is an infringement of Colby right in what is charges and infringement the stamp here is that if you look at the stamp, there is absolutely no stamp without the column. That's the...it's...I'm sorry I made my second sentence. I think I should. Thank you very much. Okay. Thank you Mr. Fletcher. Mr. Boudin. Case is taken under submission. The court is adjourned tomorrow morning at 10 o'clock in the evening