Whereas the majority opinion was predicated on an examination of "fair use", Judge Newman's dissent was predicated upon contract law pertaining to federal procurements.

1. As the dissenting judge pointed out, it was a work for hire commissioned by the party accused of infringement. Ergo, that party would hold the copyright it is being accused of infringing. Can one infringe one's own copyright? Even if so, why would a third party (and after completing a commissioned work, the artist is a third party) have standing to sue or to collect damages?

2. Any copyright that is acquired by the federal government is automatically voided; the work falls immediately into the public domain. So there is no copyright to have been infringed anyway.