Copyright in Memoriam

Copyright in Memoriam

Julie Cromer Young · 13 Vand. J. Ent. & Tech. 507

Abstract

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision Gaylord v. United States addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author’s rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain.

This Article focuses on one of the first, easy steps toward an expansion of the public domain: a policy decision that copyrights for creative works intended for the public are inherently unenforceable. Using Gaylord as an example, the Article examines expectations regarding the copyright of national monuments and memorials, as well as ownership of that copyright. It considers rights applicable to memorials, both under § 106 of the Copyright Act and § 106A, the Visual Artists Rights Act (VARA). It questions whether these works should be categorized as works of the United States government or, alternatively, as architectural works, and whether either answer would run afoul of the Berne Convention. Ultimately, it offers a solution under fair use that would create room in the public domain—not only for national monuments and memorials—but any work intended to belong to the public, for the public to use freely.