Reuters reports the U.S. Court of Appeals for the Federal Circuit will allow sculptor Frank Gaylord to recover royalty payments from the U.S. Postal Service, which used a photographer’s image of the artist's Korean War Memorial sculpture on stamps and related merchandise with the photographer’s permission but not with the sculptor’s permission. This overturned a lower court’s decision that said, in effect, the artist should take $5,000, be happy and go home.
The Postal Service argued their use was fair use, with several friendly briefs, including one from the Andy Warhol Museum. However, the three-judge panel found "The trial court must consider all evidence relevant to a hypothetical negotiation rather than limiting its analysis to the Postal Service's past licenses for different works."
Gaylord had licensed his images for a 10% royalty in the past. A quick search of the ktMINE license and royalty rate database shows 10% of gross sales consistent with other similar licenses.
Heidi Harvey, of Fish & Richardson, representing Gaylord, said the decision marks the first time the Federal Circuit both recognized royalty damages as a remedy available for copyright infringement and acknowledged a citizen's rights to claim those damages from the government.