The United States Postal Service issued 86 million stamps containing the image of a sculpture on display at the Korean War Memorial in Washington D.C. The USPS obtained a license from the photographer—but not the sculptor.
So, sculptor sues and says it would have licensed the image for a 10% royalty rate. Damages would then be in the 3 million dollar range. The trial court said nyet and awarded $5,000.00—because that is the amount the USPS said it would have paid had it elected to follow the law and obtain a license. However, the COA (Federal Circuit) says the trial judge got it wrong and must weigh the licensor’s hypothetical rate.
Here’s the opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-5097.pdf
Unfortunately, there is no dicta about how I can stop delivery of the only thing that appears in my mailbox anymore–junk.
