LAS VEGAS — When the U.S. Postal Service rolled out its Forever stamps in 2010, that close-up of the Statue of Liberty wasn’t actually the iconic American symbol of freedom.
Instead, it was the face of a replica that stands on the Las Vegas Strip and occasionally gets dolled up in sports jerseys to celebrate events in Sin City.
That mix-up will now cost the postal service $3.5 million — the amount a federal judge on Friday said must be paid to Robert Davidson, the sculptor of the Las Vegas replica.
Davidson in 2013 filed a lawsuit claiming USPS had infringed on his work. Davidson argued his replica “brought a new face to the iconic statue — a face which audiences found appeared more ‘fresh-faced,’ ‘sultry’ and even ‘sexier’ than the original located in New York.”
USPS argued it didn’t owe Davidson a thing because his statue is a replica and doesn’t contain original work. But the court disagreed.
“A comparison of the two faces unmistakably shows that they are different,” Judge Eric Bruggink wrote.
How did the mistake happen?
In 2008, USPS began the process of looking for new images for the Forever stamp. Its then-manager of stamp development had been searching for something “different and unique” in the Statue of Liberty image because it had already been used in at least 20 different stamps, according to court testimony.
The decision came down to an image of the Las Vegas statue that had appeared on a photo service. The postal service purchased a license of that photograph. USPS officials testified that they wouldn’t have selected that image had they known that it wasn’t the real Statue of Liberty.
The stamp went on sale in December 2010.
USPS learned about the mix-up three months later. But by then, the face of the Las Vegas replica was on nearly 3 billion stamps that had already been printed. The postal service attempted to make the best of it in its public statements.
“We really like the image and are thrilled that people have noticed in a sense,” a USPS spokesman told CNN in 2011. “It’s something that people really like. If you ask people in Vegas, they’re saying, ‘Hey, That’s great. That’s wonderful.’ It’s certainly injected some excitement into our stamp program.”
Eventually, the Lady Liberty stamp was retired in 2014 after about 4.9 billion had been sold, which amounts to about $2.1 billion in sales.
Was Las Vegas work sufficiently original?
The lawsuit hinged on whether Davidson’s statue, which stands in front of the New York-New York Hotel and Casino, could be considered an original work.
The sculptor said that his Lady Liberty was not a direct duplicate, and that her face was “more modern” and “definitely more feminine.” Davidson also drew attention to differences in the eyes, eyelids and upper lip. He said he was influenced by a picture of his mother-in-law, which he used to form his final version of the statue, which was completed in 1996.
The question facing the the U.S. Court of Federal Claims was whether the replica was “sufficiently original to be afforded copyright protection, whether the government’s use was infringing.”
Ultimately, the court sided with Davidson.
“The government’s only real defense is that its use did not particularly harm plaintiff’s business as an industrial sculptor,” the judge said. “That may be true, but we also note that it certainly did not benefit him. The postal service offered neither public attribution nor apology.”
Todd Bice, Davidson’s attorney, said in response to the ruling: “As the court noted, Mr. Davidson’s artistic creation of the Las Vegas Lady Liberty is highly unique and attractive, which is what prompted the U.S. Postal Service to select a photo of his work for the second-ever Forever Stamp, over hundreds of other images.”
The Postal Service told CNN by email that it is “reviewing the decision and will comment if and when appropriate.”