One fundamental issue decided in the 2017 ruling in Davidson v. US which resulted in the finding against USPS in Davidson v. US is whether the statue is a building or a sculpture. The government sought dismissal of the case because
The copyright in an architectural work that has been constructed does
not include the right to prevent the making, distributing, or public
display of pictures ... of the work, if the building in which the work
is embodied is located in or ordinarily visible from a public place.
contending "that the sculpture is part of a much larger, unitary architectural work, namely the New York, New York Hotel & Casino". The court found that the government had misconstrued the intent of that section of copyright law:
The addition of Section 120 was intended to extend copyright
protections, however, not truncate them. Previously, architectural
works had little protection because they were considered utilitarian
and not subject to copyright protection. See Leischester v. Warner
Bros., 232 F.3d 1212, 1216 (9th Cir. 2000). That changed in 1990 when
congress passed the Architectural Works Copyright Protection Act
("AWCPA"), which added specific protection for architectural works but
with the limiting proviso, on which the government relies, that
photographs of public architectural works are exempted from
protection. Pub. L. No. 101-650, §§ 702-703, 104 Stat. 5133 (1990).
The AWCPA is silent as to its effect on any other section of the
Thus, Congress didn't intend with that clause to withdraw copyright protection from statues in proximity to a building. Moreover, the regulatory definition of building is given 37 C.F.R. § 202.11(b)(2):
The term "building" is defined in the applicable regulations as a
"humanly habitable structure."
and there is no dispute that the sculpture is not a building in that sense. In short, the court rejected the claim that the sculpture was a building.