Public Art Lands Photog in Hot Water

In February 2008, Seattle-based photographer Mike Hipple received a letter from the lawyers of sculptor Jack Mackie that one of his stock photographs infringed upon Mackie’s copyright. Shown above, the photograph includes a portion of Mackie’s “Dance Steps on Broadway”, a public art piece created in 1979 with public funds.

Though the stock agency complied immediately with Mackie’s demands by removing the image and providing a settlement, Mackie is now suing Hipple for “copyright infringement and claiming the full measure of statutory damages, possibly $60,000 or more.” On the blog Hipple set up to collect defense fund donations, he states,

Now if this doesn’t qualify as fair use of the sculpture, I don’t know what does. “Fair Use” is a legal concept that allows a certain amount of copying of someone else’s work—you can get a fuller idea of how it works at the Stanford Fair Use Project website.

Think of it this way: if Mr. Mackie is correct and this isn’t fair use, then he can file a $60,000 law suit against anyone who, when strolling along Capitol Hill, thinks the dance steps are nice and takes a photo or video. He may not find you if you just leave the image on your camera or computer, but as soon as you post it to Facebook, Flickr, YouTube, etc., he can (and apparently will) sue you.

What do you think? Is this a case of copyright infringement or fair use?

(via A Photo Editor)

Image credit: Photo by Mike Hipple. Screenshot from Motion to Dismiss on Photo Attorney

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  • stbernard

    This isn't about lawyers, it's about Mackie, he sues people who use his art for gain. See “Jack Mackie, Plaintiff-appellant, v. Bonnie Rieser; Seattle Symphony Orchestra”. “There are packs of low-talent, desperate lawyers out there willing to write up a lawsuit on contingency at the chance someone will cut a check.” maybe it's Mackie and not the lawyers…..

  • stbernard

    See “Jack Mackie, Plaintiff-appellant, v. Bonnie Rieser; Seattle Symphony Orchestra”

  • stbernard

    see “Jack Mackie, Plaintiff-appellant, v. Bonnie Rieser; Seattle Symphony Orchestra”

  • Mike Caprio

    If it was Jack Mackie v. Viacom or Jack Mackie v. Disney it would actually fit my definition of “giant corporation with oodles of legal resources.”

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  • bick mylum

    If i take a wide city landscape shot of london and I want to sell it, do I now need to contact the owners of every building, the architect, the brick suppliers, the glass manufacturers the window cleaners, the cable companies, the man who invented the satellite dish on every roof top…etc…etc…etc….? Do I just photoshop out the ones who wont give permission?

    What about every stock library shot with an apple laptop in it? or an iphone? do they need paying because I used their product in my shot?

    Obviously the artist needed a bit of publicity and some cash as he struggles through the recession….seems like he doesn't get out much either and needs to get a life…

    On the other hand….for those who are buying! I just created a photograph that has me holding a photograph of this image in question and I'm selling it….screw the artist and the photographer right? HAHAHA! no seriously…drop me a line if you want it!

  • Slenderthread

    Artists are entitled to copyrights in their creations, which include reproductions (even in different media) and derivative works. Even if the derivative is original enough for copyright protection itself, it still can (and very likely will) infringe the original copyright owner's rights (in, say, reproduction and derivative works). I am a copyright lawyer, and I am really shocked at the misinformation that so many people have about copyright.

  • Slenderthread

    Fair use considers whether the use is commercial or noncommercial. You can take a photograph of the sculpture for your personal use. If you make money from selling photographs of other people's art, that's a whole different story. It's not fair *art*, it's fair *use*, and you have to consider how people are using the copyrighted work.

  • VivaUSA

    Hi Slenderthread… Question for you, If a statue is defaced with additional clothing and other elements and pictures of it are sold will the copyrights still be enforced? Aren't you making a parody of the original statue? Thoughts?

  • onny21

    Yeah, no difference at all…stealing a car and taking a photo with a PUBLICLY FUNDED, public art. You’re an idiot.

  • onny21

    Yeah, no difference at all…stealing a car and taking a photo with a PUBLICLY FUNDED, public art. You’re an idiot.

  • Kailtin Bledsoe

    Hmm. Here’s my two cents:

    The sculpture is in a public place. If you take a photo at say- the Eiffel tower in Paris, that doesn’t mean Gustave Eiffel or his descendants, could sue you for taking a picture of it. That’d be ridiculous.

    So it’s the same thing with these “feet.” They’re in a public place where people everyday take photos. It doesn’t matter if the person taking the photos is going to sell them (with another subject in the frame; in this case the man’s feet, which honestly make the photo in my opinion), the sculpture is in a public place.

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  • Dan

    The point is not about whether someone can take a photo of the sculpture, but what usage is permissible. Hence, the discussion about Fair Use. You can take all the photos you want of the sculpture–and they could certainly be used editorially, but commercial usage is where it gets more complicated.

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  • The Observer

    Let me get this.  The “sculptor” puts a “sculpture” of dancing feet on the ground, and he never expected people to put their footprints on some of the “sculptures” and take a picture of it?   Really?  Moron.  Case dismissed, IMO.

  • outraged by bullshit

    If you dont want your Publicly funded project to be photographed then dont use public funds and hide the stupid sculpture behind a fence in your backyard  So many greedy bastatds in this business

  • Tom L

    In this example, the photograph is of kids playing in a fountain, not of a piece of art. The use of a specific fountain is incidental so you’d probably be okay.

  • Tom L

    Whether the display is public or private doesn’t really affect the copyright issue here. Compare to a photo studio that sells a wall portrait to a customer that displays it over their mantel. That doesn’t allow the customer to take photographs of the wall hanging and make 5×7 prints. They are supposed to buy those from the studio!

  • Tom L

    The mocking pose of your wife creates a parody. Parody, even when commercially sold, is protected in the United States as fair use. The French might still be pissed though.

  • concerned

    If one copies the SCULPTURE t would be an infringement. The photographer took a photo of part of a sculpture (which was Public Art). The important parts of that sentence are as follows: [1] the questionable item was a PHOTO of a sculpture, not a SCULPTURE (a different medium entirely), [2] the photo was taken of only part of the other person’s sculpture and included other elements so it did not in any way “copy” the other person’s artwork/sculpture, [3] it shouldn’t matter if it was a photo of the whole sculpture because it was a digital (or film) capture) of the sculpture, not an actual copy of the sculpture, and [4] the sculpture was PUBLIC ART, making it in a different category than if it was in a museum or a private collection.

    Also missing from this argument is the concept of ownership. Did the sculptor give it or sell it to the city (or other gov’t entity) or does he still own it? If he doesn’t still own it, he isn’t entitled to anything.

    Suing someone is a poor way to augment an income.

  • Wes Jones

    Since the photograph is just a small part of the entire “sculpture” I would imagine that the court would find that it is a derivative work. Either way, I think Mackie is just being a dick.