I've seen reports that the USPS had to pay $3.5 million for using a picture of "Robert Davidson's Las Vegas replica" instead of the original.

But it seems that the US has "freedom of panorama", which means that one can take pictures of buildings still in copyright.

So what copyright issues did the USPS violate?

  • From the Wikipedia article you cited: "The definition of 'architectural work' is a building, which is defined as 'humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions'. This freedom of panorama for buildings does not apply to art, however." So it seems the resolution is simply that a statue is a work of art and not a building. – Nate Eldredge Jul 16 '18 at 0:27

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 Copyright Act.

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.

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