The Postal Service conceded that it had used the wrong image and said it would “reexamine our processes” to prevent the error from happening again. But a spokesman said the stamp design was so popular that the agency “would have selected this photograph anyway.” He also said postal officials had wanted to issue a Liberty stamp that was distinctive and different from numerous previous versions bearing the image of the statue.
The statement could now come back to haunt the Postal Service. The Las Vegas sculptor who built the Western Lady Liberty is now suing the agency in U.S. Federal Court for copyright infringement.
The Postal Service chose the image from an online photography service, Getty Images. But it did not acquire the rights to duplicate it from the artist, Robert S. Davidson, probably because postal officials assumed they were issuing a stamp with a famous image [in New York] that already was in the public domain.
But having said it would have selected the photograph, the Postal Service may be hard-pressed to argue that it made a mistake. It has continued to issue the stamp with the picture of Davidson’s statue. It has been extraordinarily popular and sold about 4 billion copies. And it’s still in circulation.
Postal Service spokesman Roy Betts said he could not comment on pending litigation.
The lawsuit, filed last week, claims that Davidson’s sculpture “brought a new face to the iconic statue — a face which audiences found appeared more ‘fresh-faced,’ ‘sultry’ and ‘even sexier’ than the original.”
The sculptor’s lawyers take pains to distinguish the replica as a piece of art with many differences from the original, from a “softer, more feminine and realistic silhouette” to the “fuller chin, a friendlier expression and pronounced cupid’s bow shape of the upper lip” on the Las Vegas copy.
The lawsuit claims that the Postal Service knowingly committed copyright infringement: Once officials admitted their error, they continued to print billions of stamps depicting the Las Vegas replica without seeking the rights to print it.
“Defendants, through the USPS, determined that it was in their financial best interest to continue to infringe upon Davidson’s rights, as the cost to discontinue the infringing activity exceeded the marginal cost of royalties that they knew or should have known were owing,” the lawsuit claimed.
Davidson does not specify the damages he is seeking. His case could be strengthened by a federal court judgement in September, which awarded the sculptor responsible for the design of the Korean War Memorial $685,000 in damages after Postal Service used a photo of the memorial on a stamp without the sculptor’s permission. The court found that the artist was entitled to royalties of 10 percent on sales of stamps to collectors and on sales of merchandise featuring the stamp design.