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

  • Ranger 9

    Clearly Hipple's photo is a “derivative work” — it would have no commercial value whatsoever if it didn't depict Mackie's sculpture in a recognizable way.

    That means its claim to fair-use protection would depend on HOW it was used. To accompany comment or criticism about Mackie's sculpture, certainly; in a textbook about public art, probably; shown independently as a piece of fine art in an exhibition; possibly. But as an image for commercial sale, huh-uh.

    Hipple's fair-use argument seems to boil down to nothing more than, “I'm entitled to make money off this because it's right out there on the sidewalk.” That's not much different from arguing, “I'm entitled to steal your car because you parked it right out there on the street.” Sorry, I think the photog is off-base this time…

  • heather

    What I'm getting is that Hipple is selling this photo on a stock photography website? I think it depends on how Hipple is naming/labeling/categorizing the photo. Is it a photo of “dance steps,” “broadway dance” or “street art” or something along those lines? In that case, his focus seems to rely on the fact that the photo is of this specific piece of art. If Hipple named the photo under “dancing” or “street scene” or “star show,” the public art seems less central to the intentional focus of the image. Intent matters a low. I'm curious how this goes.

  • Gary Busch

    Well, it depends on, where this sculpture is.
    If it is on a public road or place, I don´t see any mistakes by the photographer.
    Even, as i read, when it is paid by public funds. It is allready paid, isn´t it. Also, it´s just a small part of the sculpture.
    If it is on a privat property, it´s a little different. But then it wouldn´t be paid with public funds.
    Guess the sculptor needs some money ;-)

  • Patrick La Roque

    Although I'm not sure the $60.000 is justified (based on stock sales?) I reluctantly have to agree with Ranger 9 on this one. The picture's main subject is clearly the “sculptural” feet without which the whole thing would be pretty ordinary.

    Commercial use of the artist's work without compensation doesn't seem like fair use to me either. And believe me, I'm not a big fan of lawsuits or lawyers…

  • mnovaes

    “[…] a public art piece created in 1979 with public funds.”

    Nice! The deal is to get some cash from the government, build something in public streets and then charge anyone who takes pictures of it…

    This is ridiculous… Andy Warhol would be filled of lawsuits if there wasn't fair use – and hell, he sold, exposed, etc. a lot of stuff that was private property, not even public.

    I guess it's fair to have the sculpture name/author in the photography's description, but other than that, it's free advertising to his work!

  • Arne Gulstene

    So if my work of art was a water fountain and I took a photo of kids playing in the fountain and I used it as stock I'd be at the same risk as Hipple?

    What if I labeled it as “fountain play” or “water dance”

    I'm falling on the Hipple side of the argument. I wonder if I decided to create my own sidewalk art and mimicked Mackie's sculpture – would I be at risk then too?

  • sn

    Can't say I'm surprised. Even something as simple as taking pictures of the Eiffel tower at night will get you in hot water.

    What is funny, however, is how “work for hire” in the art world allows the artist to keep his/her copyrights, while in the tech industry, those rights end up being owned by the employer.

  • Happy_Tinfoil_Cat

    I doubt there is much chance of the artist winning, but that is most likely NOT what the objective is. The objective is to settle out of court for half of the $60K since it will cost $40K to defend. Insurance companies often 'pay off' nuisance lawsuits that would cost more to win, and possibly even lose. 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.

  • tfitchette

    I think because this is a piece of public art, owned by the public (we paid for it with tax dollars) puts this in a whole different category.
    The danger in allowing this suit against the photographer to stand will make it dangerous for anyone taking photographs in public locations where someone could claim some sort of copyright infringement because the image included a statue, billboard or even a famous facade.
    The point is one of public art and who paid for the art.
    This certainly could set a very bad precedent on journalism since newspapers and TV stations are “for profit” enterprises. What happens when they film photograph something that winds up printed or aired on television? Can the artist claim copyright infringement because the journalist did not pay before he or she made his or her images?

  • Tim Gander

    I'm a professional photographer, and I have to side with the sculptor in defending his work against exploitation – setting aside the amount he's claiming.

    You can't copy other people's work, or parts of it, regardless of who paid for it or where it is, then sell it on commercially without permission. If the image was only for editorial uses, that would fall under fair use, but it would appear this image was available for any and all uses, including commercial.

    A lot of muddled and misguided interpretations of copyright seem to be building up in the comments here.

    I would only qualify my comments by stating that I'm based in the UK and governed by the laws here, but they're not so different in principle to US law except perhaps in the realm of damages claimable.

    I suspect this is another case of an untrained “photographer”, ignorant of the law, supplying pictures to a micro-stock agency, then getting it all horribly wrong. It was bound to happen eventually, but I'll be interested to see what happens.

  • Edward McGowan

    It is because he is selling it as stock photography. Even if you shoot at a public location are usually required to get a property release to sell the image (if the location is the focus of the image).

  • Tim Gander

    Wrong, wrong, wrong. Even though newspapers and magazines are commercial organisations, the editorial content falls under fair use legislation, while advertising content doesn't. If this photo was used in editorial, that would be fair use, but I suspect it just as easily have been bought and used to endorse a product, which wouldn't fall under fair use.

    Copyright is there to protect photographers (including non-professionals who also take pictures) as well as artists. We can't have it both ways.

  • Tim Gander

    That's the difference between copyright and intellectual property I guess.

    In the UK we don't have “work for hire”, but it would seem to me that photographers even on work for hire contracts often have to supply all their own equipment. Could be wrong on that one, and would relish enlightenment.

  • Samuel Bennett

    No, under no circumstances can a photograph be copyright infringement of a sculpture. These are two very different forms of art. If the photographer took a picture of every angle of the sculpture and made a digital 360-view of the sculpture, then there would be a case of copyright infringement. The photographer is entitled to his artwork, which includes the composition of the picture with focus areas. If nothing else, the sculptor should be happy because of the interest that the photograph will bring to sculpture. Photographs are nice but they don't replace being there and seeing the sculpture for ourselves. Undoubtedly, more people will want to see this sculpture because of the photograph.

  • dionwr

    This is using the legal system and copyright law to bully, plain and simple. Mackie should be ashamed of himself, and I hope people here will go to Hipple's site and donate so that he can fight this.

  • keverz

    Perhaps Mackie is tight for cash. But if he gets away with this, then all public art should be removed from stock libraries. where does that leave us as photographers? I think it is fair use. it's a picture for crying out loud. the photog didn't rip out the sculptures and try to sell it on ebay.

  • Tim Gander

    Oh dear, I can't read any more. Too many insane opinions. Please just go to your local library and look up copyright law.

    If a sculptor made a sculpture based on one of my photos, I'd want to know about it and I'd be looking for fair remuneration based on the intended use or market for the sculpture.

    Please, people, copyright isn't so difficult to understand. Learn about it because it might be useful to you one day. You can't just replace law with gut reaction and opinion.

  • Happy_Tinfoil_Cat

    Thought about it a bit. Always remember to get those model releases and property releases signed. It all comes down to who owns the copyright, artist or public. It really bugs me when projects are paid for with public money and the copyright and/or trademark is withheld. Hopefully, the public owns this one.

  • Nick

    Before this story goes into orbit, ask Jack Mackie for an opinion or comment – perhaps there are two sides to every story?

    Surely he has a right of reply?

  • Michael Zhang

    Hi Nick,

    Not sure if his contact information is anywhere on the web…

  • jake_88

    the law may be on the side of mackie, but i think this is stupid. same as the case of eiffel tower. why would someone display an art work in public, but can't be displayed in photos? he should've just displayed it inside a museum. maybe the photo got so popular, and his name wasn't recognized? like the eiffel case i think it's absurd.

  • Matt

    He's not making a profit off the art, he's making a profit off the picture of the art, that HE took. It's fair use, no contest. It was a public piece and Mackie is a money hungry douchebag. Laws are ridiculous, as in how a burglar can injure themselves while breaking into someones house and then sue them. WTF? This country is going to shit….

  • david monnerat

    someone posted on an offshoot of this story that they contacted the artist and basically said that “there are two sides to every story.” there are obvious copyright law experts that have already posted to this thread (/cough), but i think one of the missing pieces is how the work was commissioned, what was signed, etc. it obviously sounds like he didn't sign away any of his claim to the work of art, even though it was paid for with public funds, etc etc. so as to who owns the artwork and has a claim, i don't know. but since we're a litigious society, anyone can sue anyone for anything, and the courts will decide the merit of the whole thing. but if the mona lisa was being transported and carried on a public sidewalk, and i put my wife next to it mocking the pose and took a picture that included both my wife and the painting, can i sell that as stock photography? the french government would probably be pissed. i'm guessing there's some sort of licensing deal to reproduce that for sale, and i'm no lawyer, but i'm curious what the difference is, just because this guys work happens to be permanently displayed in a public place.

  • Mike Caprio

    He who has the gold makes the rules! If Hipple was a giant corporation with oodles of legal resources, you can bet that Mackie wouldn't have bothered trying to sue (because he couldn't have won).

  • Tim Gander

    Why is it that if you can see something in a public place you think you own the copyright to it? This makes no sense. Grow up and get on with your lives. Let these two people slug it out in court and see what the outcome is. Calling people “douchebag” is infantile.

  • shannonfaulk

    If the photo was taken of a model dancing, and the focus taken off the art work, then it would have been ok. But the thing is, the photographer should have known, the editor at the stock agency should have known, This was just a mistake made by all, the sidewalk artist deserves the money, the photographer should think twice next time he uses other artists artwork as the focus of his or her image. This issue is Photography 101, someone in this class always comes in with a macro shot of someone's artwork, and fails the assignment. This happened to a student in my first class at Brooks Institute of Photography.

  • spaceman spiff

    Definitely fair use! This sculpture is embedded in the sidewalk in Seattle – my wife and I were there and were enjoying the embedded sidewalk sculpture – I think this is a waltz. We even took a similar picture! In any case, since this is now part of a public thoroughfare, permanently embedded in the sidewalk as it is, how can the artist claim that this isn't fair use?

  • joakimbergquist
  • G monty

    The photo is a picture of a “sculpture” is a copy of a common instrustional dancing pattern that
    which may in and of itself be an image that should merit the protection
    of copyright. Anyone calculate this variable into this formula?

  • cynyr

    But isn't the sculpture in a public place? (the sidewalk), and AFAIK most states have rules on where and what you can take a picture of. At least around here(MN, USA) standing in a public place taking a picture of something else in a public place is allowed. How are these feet any different than taking a picture of a famous building or a front entrance. If the “artist” wanted to keep control of his work keep it in a Gallery where he can charge an entrance fee.

  • vic13

    Are you guys all gone nuts? I am sick and tired with your car analogy (really, why not an elephant?). It is not a proper example whatsoever! If you steal a car then car's owner does not have it now!

    The sidewalk is still there in Seattle, though… Go and take a look. And it's a public place. And created with public funds!

  • cynyr

    Good luck taking a picture of just about anything except nude models in a studio then. Clothes, copyrighted(by your definition). Shoes, buildings, also copyrighted. Hell even the lines on the road are probably owned by the city then. I'm not sure i could even take a photo in my apartment that doesn't have some sort of possible claim like yours in it.

  • vic13

    “Not so difficult to understand”?

    Are you kidding me? Then why do we still have so many copyright lawsuits? All judges and copyright lawyers are dumb? It's just you, who are bright and smart here?

  • planetMitch

    I think this is an interesting debate.

    Yes, I think it is fair use to take the photo and to display the photo. It is also fair use to use it in an editorial fashion. However selling it for use as commercial stock photo may not be. Places like iStockphoto and shutterstock won't accept stock images any more if there's any suspicion that there may be a copyrighted work of art included because of this issue. If I were the artist however, I would be happy with the settlement from the stock agency (mentioned in the article) and I wouldn't go after the photographer…. but that's just me.

  • jim

    Any _good_ artist, sculptor, music, film or otherwise doesn't need to sue to make a living if they create something worth buying.

  • art fan

    In the fountain example, if you took a photo of your own fountain (to which you own copyright) with kids playing in it and used it as stock, you would be OK. But you would probably have to get a model release signed by the kids' parents.

    If you were to create your own artwork that mimicked Mackie's sculpture–and got paid for it–you bet you would be infringing on his copyright to the work. That is what copyright law is designed to prevent.

  • art fan

    Commissioned artworks aren't “work for hire” unless the contract says they are. And very few of them do. Even if they do, there are very specific rules guiding what constitutes work for hire–whether the artist is an independent contractor or conforms to the legal definition of an “employee” is a major factor–so that when push comes to shove in court, it could be ruled that the contract provision establishing work-for-hire cannot be enforced and is therefore voided.

    Now, art programs can ask that the artist sign over their copyrights as part of the contract, but the artist will typically turn down the job if that's the case. In the absence of any language to the contrary, an artist automatically owns the copyright for their lifetime plus 50 years (the heirs get it then) providing the artwork was created after 1/1/1978.

    This is a very interesting topic and I'm glad to see so many people picking over the details.

  • art fan

    Yes, a photograph can be copyright infringement of a sculpture. A photograph is separately copyrightable, and including a copyrighted work in another copyrightable work is known as creating a derivative work. Often the consideration of whether the “infringer” added independent value to the original work comes up: the exact nature of the photograph and the depiction of the sculpture would determine that and there would have to be expert testimony on both sides. Typically if there is substantial independent artistic or technical value added, a claim of infringement will be denied. IANAL but I am in the art business–looking at the photo above the artwork is depicted in sufficient entirety so as to be an identical likeness, and the feet are such a small “independent” aspect of the image, I think a judge might seriously consider the photograph an infringement of the sculptor's copyright.

  • taoareyou

    If a photograph of artwork viewed in public can be considered a violation of copyright, what about photos with cars in them. Photos with buildings in them? Photos of people wearing clothes and jewelry? If this had any merit whatsoever, I would think the majority of personal photos on the Internet would have to be taken down.

  • taoareyou

    Car designs are copyrighted. No cars. Many buildings have artwork around them or are themselves copyrighted. No buildings. Designer clothes? Better not be wearing clothes. Designer jewelry? Take off your jewelry. I'm really curious why a paparazzi can take a photo of a person and sell it without their permission, but we expect that a photo of dance steps (not really original artwork there, either, for that matter) is infringing? What if I take a picture of a street performer? Can I not sell that photo? What if it's a picture of Britney Spears singing in public? Can I sell that?

    When did it become that the photographer does not own the photos he takes?

    Consider this too, I've recently seen pictures of some artwork made from old tires. I'm sure the design of those tires belongs to someone. Should the tire companies sue? Sure the artist transformed them into something else, but a photograph is not a sculpture is it?

    The entire idea that someone else can own the copyright on photos you take in public is absurd.

  • planetMitch

    The argument isn't really whether the photographer doesn't have a copyright on the photo he took, the point is that he cannot sell it as stock photography with commercial rights. That's why his stock supplier paid off the sculptor… it wasn't because of the copyrights issue but how the photo was going to ultimately be used. Say for example it was used to advertise a dance company, that's commercial use without the original artist (the sculptor) getting a cut of the revenue.

    sure you have the rights to photograph the sculpture, but you don't have the right to sell the photograph as commercial stock that someone could incorporate into an advertisement.

    here's a primer that I think is darn good on rights in relation to photography… – specifically model releases, but I think it would educate many of you about the usage rights for the photo.

  • Happy_Tinfoil_Cat

    They're going for blood by claiming that the photographer removed the copyright from the sculpture by not including the block it is engraved in, in the photo. This provision in the copyright law is meant to vastly increase the penalty for removing the copyright during piracy.

    The sculptor did not even file a copyright for seventeen years, well after the photo was taken. Hmmm, not sure how that plays into everything. Perhaps it just may mean the USPTO will not actively pursue the case, which is what seems to be happening.

  • Name

    I'm curious here. The sculptor created something amd sold it to the city. Does he really have a right to sue? Or should the city be suing?

    Is he allowed to dig up the statue?

    If I were on city council I'd move to melt down the sculpure. Screw the whiny artist.

  • art fan

    The sculpture doesn't even have to “file for” (aka, register) his copyright. It's his from the moment it was created, if it was created after 1/1/1978. He doesn't even have to put a copyright notice on it anymore. Registering the copyright just adds the ability to collect statutory damages in addition to the compensatory damages he is entitled to without registering. And the copyright can be registered anytime after it is created.

    This is totally basic stuff. Please, just Google “copyright basics” and you will find the US Govt's website with the copyright law verbatim and and all sorts of commentary. The sale of the artwork to a public entity and the installation of the art in a public space DOESN'T MATTER when it comes to copyright. If Mackie didn't sign away his copyright, he is perfectly entitled to pursue the photographer legally. Whether he should or not is a different issue. But the photographer cannot claim innocent infringement, because there is a copyright notice right on the artwork.

  • mastacoupe

    Hands down fair use. Someone should pull Jack Mackie's art card for chilling artistic speech. Even more beyond the pale is Mackie's source of funding (public). Give me a break, please!

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  • jasone74

    I'm going to say this ISN'T fair use.

    Hipple is using the photo for STOCK/COMMERCIAL, not PERSONAL use.
    Which means that any company that wants to BUY rights to the pic, and use it to advertise their products are putting FUNDS in his pocket and he doesn't have a model/property release.

    If you want analogies then use the taking a picture of someone in public scenario. Yes you can take all the pictures of people in public that you want. Hell you can even sell them, but if you don't have their permission to use their image in a commercial sense, ie stock photo, then you can be sued by them.

    If I take a picture of a crying baby and put it on stock sites and a pacifier company wants to use it for their worldwide ad campaign and I have no model release for the baby, I can be sued.

    It seems like in this case IF the photog were just selling prints of this on his website for individuals to hang in their homes then it would be FAIR USE. but since this is an image for COMMERCIAL enterprises to buy and then further manipulate and possibly distort the

    Even as a photographer I don't think it is fair to take and sell pictures to commercial entities if you aren't also sharing the wealth with all those that helped contribute to the parts that made up the image. If I take pictures for a Pepsi ad, all the models and talent should be paid too, maybe not equal shares as the photog but they should be paid. Its is part of “acting” like a professional. If you want to be a professional then you must put forth the extra effort needed, in this case seeking out property release from the city/artist, when dealing with the corporate/legal world.

    And that statement doesn't mean that I think either party in this lawsuit is acting in a professional matter, that will be up to the courts to decide.

    The moral is, continue to take all the pictures you want of who/whatever you want (that isn't on private property) and if you decide to sell your pictures to commercial entities, then you should seek out model/property releases for everything in the dang frame that might “belong” to someone else. No need for whining and making up reactionary whacked out hypothetical scenarios and crying.

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  • panacheart

    Here's a nice link to the court proceedings for when Mackie filed suit against the Seattle orchestra for using his image.

    I still think it's fair use, and totally disagree with Jason74. Sorry dude, I hear what you're saying but it's derivative, and doesn't even show the whole image of the steps. But regardless, read the case notes above. Given that verdict, you would think Mackie would give up and get a life, but he hasn't.