Photog fragged by fair-use-f***ing footprint artist…

When Seattle-based photographer Mike Hipple took this stock picture, at left, of a 1979-vintage, public-arts-financed, sidewalk piece called “Dance Steps on Broadway” by artist Jack Mackie, he had no idea that he had just stepped in the worst s—-t the sidewalk can dish up.

Because Mackie is suing Hipple to the tune of $60,000 for copyright infringement.

Now, we all know the economy sucks. And I usually reserve my outrage for predatory corporate entities bent on the economic pillaging of the individual content producer.

But now, things are apparently so bad, that it’s content-producer eating content-producer…a veritable Lord of the Flies scenario for image-makers.

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In the words of the ill-fated Simi Valley motorist  Rodney King, “can we all just get along?”

Apparently not.

Hipple’s stock agency, upon receiving notice from the “artist” and his legal team, took the picture down from their site. But that wasn’t good enough. Mackie, who had wisely registered his piece, is now seeking punitive damages to the tune of the aforementioned $60 grand.

For more information on how this case is playing out, and how you can help (this affects each and every one of us who shoots travel pictures in public places), hit the jump.

Here’s Hipple’s statement on the case:

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.

We’ve had cases like this before. When Anish Kapoor’s Cloudgate sculpture (aka “The Bean”) was first displayed in Chicago’s Millenium Park, they tried to prevent any professional photography of the publicly financed and displayed artwork. That lasted about a year or so before it was knocked down.

In the meantime, Hipple has set up a legal defense fund site to which you can contribute. If you are a member of ASMP (American Society of Media Photographers), write to your local chapter to see if we can get the organization’s Legal Action fund (to which I am a regular contributor) to adopt Hipple’s case. And if you can’t afford to do either, send Mike an email of support.

This is an important case and from what I can glean, Hipple doesn’t have the means to fight it. But if somebody doesn’t come to his aid, one thing is for sure….

Photographers are going to get walked over….again and again.

This entry was posted in Career issues, Ironies, Legal Issues, Travel.

19 Comments

  1. Martha September 3, 2010 at 12:10 am #

    Thanks for writing about this!

    I must point out a trivial but historic detail. Rodney King had been motoring in Lakeview Terrace when the famous video tape was made. Simi Valley is where the abusive police officers were tried and acquitted. Even Rodney King would know to stay out of Simi.

    • Bob September 3, 2010 at 5:35 am #

      Martha: Thanks for the clarification! Bob

  2. Charlie Flynn September 3, 2010 at 1:19 pm #

    J.R.I. (Justifiable Righteous Indignation).
    A joke circulating a few years ago asked: “What do you have when a ship full of lawyers is sinking in the middle of the Ocean?” Answer: “A good start.”
    LAK to TOWMBO. Red wine is good for your blood pressure.
    Charlie Flynn

  3. Charlie Flynn September 3, 2010 at 1:23 pm #

    btw, were the feet in the original image that was copyrighted. If not, can Hipple sue for a partial, background image? OMG, we muat all destroy our cameras less we take a picture.

  4. Will September 3, 2010 at 2:21 pm #

    Wow, I live in Seattle and I am going to be up on Broadway in a couple of hours for a meeting and this creeps me out. I could understand this if the photographer copied the artwork, became a sculptor and imbedded it in the sidewalk somewhere but this is just a “travel” photo showing a popular local attraction in context. It is a publicly funded work in a very public place. If this sets a new precedent then all photographers will have to crop out public sculpture! One more good reason to support ASMP and/or become a member.

  5. Stephen September 3, 2010 at 3:39 pm #

    wow–absolutely outrageous!! thanks for bringing this to our attention

  6. John A. Fugel September 3, 2010 at 4:03 pm #

    Bob,
    I fear we are going to see even more of these lawsuits in the future. The absurdity started several years ago with the “Lone Cypress” tree in Pebble Beach. The owners of the property on which the tree stands obtained legal copyrights to its image.

    As a video producer/director, I’m always careful about securing releases when shooting on location. Back in 2001, I was traveling the country, shooting interviews with several building managers as part of a corporate promotional video I was producing for a (now defunct) telecom company.

    One of the interviews was with an executive of the company that managed Chicago’s Sears Tower. We jumped through all the hoops: provided proof of insurance, sent out an advance copy of the proposed questions, got sign-off from the company’s lawyers, cleared the crew and equipment through building security, etc., etc.

    On shoot day, we set up our lighting in the company’s conference room and my cameraman suggested that we frame the guy along with a nice poster-sized photo of the Tower over his shoulder.

    After tweaking up the lights to avoid glare from the picture glass, the scene looked great. I had the guy sign a model release (and gave him a dollar bill to make it legal) and we proceeded to shoot about a 40 minutes of tape.

    My client loved the way the scene looked and the interviewee provided several excellent sound bites that fit perfectly into the program. What could go wrong?

    As a courtesy, we sent the building management firm a tape of the bites we had selected, so that they could review them within the context of the program. A couple of days later, I got a call from the real estate company’s legal guy. “You can’t use the interview tape,” he said.

    To make a long story short, it turned out that the rights to the photo of the Sears Tower that appeared in the shot were owned by the photographer, not the company. He wanted to be paid for the use of his photo.

    I was on a tight budget, so there was no way I could cough up the money for the rights use a photo that was only a background element. It looked like I was screwed and couldn’t use the interview at all. The only way to get around it was to digitally blur the photo in post-production to make it unrecognizable. (It wound up looking like we had shot the scene at f/1.4, as the background looked really soft.) It worked, but, perfectionist that I am, I was less than happy with the way it looked in the final program. But I learned my lesson well.

    I’ve noticed lately that some the programs on HGTV, which feature remodeling/decorating projects that often show art works on the walls, are now blurring out the art to ensure that they don’t violate the artist’s copyrights. One of their producers must have found out about copyrights the hard way.

    So what’s a photographer/videographer to do?

    Make sure that if you intend to use your shot/footage for commercial purposes, that you get a signed release in advance from the right people.

    It’s enough to make you want to switch to landscape photography.

    Just make sure that the view isn’t copyrighted!

    Have a great Labor Day weekend!
    John

    • Bob September 3, 2010 at 4:08 pm #

      John: Thanks for that cautionary tale….it is getting pretty absurd out there! I had dealings with those Pebble Beach people about that tree! Weird. Oh well, as you say, there’s always blurring out stuff in post….for a lot of artwork these days, that’s a marked improvement! Bob

  7. mike a September 4, 2010 at 3:34 pm #

    i wonder if i chisel something on a rock that i saw instead of using a camera will someone have a problem with it….probably.

  8. Mark M September 4, 2010 at 5:19 pm #

    I am all for defending fair use. I think it’s important because I think the first amendment and free expression is more important than my copyright even though I depend on copyright. Having said that, I think we need some clarity about fair use as the media landscape changes. The law has this to say regarding the purpose of fair use:

    “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”

    This make me wonder which of these Hipple’s photo, which appears to be made to sell as stock, falls under. To me, it doesn’t fall under any of them. So it leaves me with the question: why shouldn’t the artist of the original work, which is so integral to the photo, be able to share in the profits?

    Although it’s probably not great news for Mike Hipple, at least the case stands a chance of shedding some light on how courts will interpret this kind of use, making it easies for us continue working. After all, it’s the uncertainty and vagueness of fair use that makes it so problematic.

    • Bob September 4, 2010 at 5:46 pm #

      Good point, Mark, and I’m not entirely sure “fair use” is the right defense. It might be easier to defend as just a First Amendment editorial grab shot that includes some 35 year old brass footprints.

      Remember, this is a piece of publicly funded sculpture embedded in the sidewalk of a major city! Shepherd Fairy had to track down Manny Garcia’s picture of Obama to create his famous ripoff colorized poster (and by the way, so far, he’s getting away it). This is guy posting a grab shot of the street.

      You say “why shouldn’t the artist of the original work, which is so intergral to the photo, be able to share in the profits?”. And that’s a good point, but it would be a few millenia before $60,000 became a “share” of the profits, assuming there are any.

      If this case doesn’t go right, then every street scene photograph that is published and includes a mural, sculpture, billboard, or architectural filigree will make the photographer liable to the share the paltry sales of those photos with the designers, architects, builders, painters, etc. etc. . In the world you posit, Mark, the estates of Gustav Eiffel (the designer of the Eiffel Tower), Shah Jahan (the architect and builder of the Taj Mahal) and James Roebling (he of the Brooklyn Bridge) and other architects and sculptors who create the monuments folks photograph when they cover a city, would be rich beyond the dreams of Buffet and Gates!

      In the meantime, Mark, if you think this case is justifiable, it’s probably best that you don’t publish any pictures you’ve taken on the street….you never know who’s work you might be ripping off! Bob

      • Mark M September 4, 2010 at 6:47 pm #

        First, regarding your last point to rest—maybe I’m in hot water with that first one:
        http://www.nytimes.com/slideshow/2010/07/06/travel/20100711-SURFACING.html

        A couple of points:

        1. I won’t pretend to have the answer here and your points are well taken. There seems to be line somewhere between capturing a scene that includes copyrighted elements and making a photo that simply exploits someone else’s intellectual property. If it were up to me, I don’t know how I would define that line, which is why these cases are so interesting and important.

        2. There is an exception in the Title 17 for photographs of architectural works which should lay some of our worries to rest when photographing buildings:

        Ҥ 120. Scope of exclusive rights in architectural works
        (a) Pictorial Representations Permitted. — 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, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”

        (Where sculpture becomes architecture is unclear to me.)

        3. Although I agree that $60k is absurd, punitive damages are necessary in order to give copyright law teeth. If we are only able to sue for actual damages then there is no incentive for people to seek permission to use our work—they would simply use it and only pay if they got caught. Rather than say the artist should share in the profits, I suppose my feeling is that the artist should be able, within reason, to control the exploitation and distribution of his work. I understand the difficulty this presents when the work is part of a public space and I’m not sure what the answer is.

        • Bob September 4, 2010 at 7:24 pm #

          Mark: Great, thoughtful points. And you’re much better-versed in the letter of the law than I am (I’m a “spirit” of the law type of guy, and it’s gonna get me in trouble one day. Because in our litigious society, what’s right or wrong often doesn’t matter)

          And an excellent set of pictures of Anchorage! (BTW, my cousin designed those cupcakes, so you’ll be hearing from her lawyer any day now…she needs a new oven and, um, a new car, and what the heck, you’re probably another one of those rich photographers….).

          I agree with you on the artist’s need to control his own work, and from what I know, Hipple and his agency took down the picture immediately upon being contacted by the sculptor.

          So this whole thing just smells a little like “let’s fly this up the flagpole and see how much we can scare out of this guy.” Look, an artist active in the 70′s is probably looking at Social Security soon (wait, I was active in the 70′s!) and I don’t blame him for taking a flier. Lord knows, you can’t live on Social Security anymore.

          But the problem is that he’s taking a flier at another individual of similar means in a similar business, and should this case get ruled the wrong way our entire profession could be toast (not that it isn’t already).

          As an example of how the letter of the law contradicts the spirit of the law, I point you to National Geographic’s famous CD edition case. After a series of verdicts and reversals, the court ruled that the set of CDs/DVD’s of the 110+ years of the magazine was essentially the same product as the magazine, and thus the Society didn’t owe photographers another penny for the sales of that CD/DVD set.

          But here’s the kicker….if it’s the same product as the magazine, then every subscriber and society member should be entitled to a free copy. I’ve been a Society member for nearly 30 years…but somehow, they just won’t send me my free copy. Which is strange, since it is “essentially the same product” as the magazine! Go figya, as we say in my homeland of New Jersey.

          Well, as you say, it will be interesting to see how it plays out. But I’m not as sanguine as you in terms of how it will impact our profession….and I’m almost certain that I’m a lot closer to Social Security age than you are!

          At any rate, thanks for your valuable insights, Mark. And rest assured I’m going to try to talk my cousin out of persuing her case…. Bob

  9. Paul September 5, 2010 at 7:39 am #

    Oh hellfire!

    What happens across the pond always finds its way back to your cousins on these isles.

    I truly do not understand how anything on public display can be copyrighted. It’s part of the environment, surely. You’re not charged a toll for looking at it; which couldn’t work. Imagine having to put on blinkers, or wear a blindfold… or driving past, I’m sure the emergency services would thrilled.

    It doesn’t make sense, Bob. I know in France you have to have permission to photography someone’s house, which seems fair enough to a point. But wouldn’t the Warhol defence apply: the image is different, has been changed by the inclusion of the leg?

    My goodness! What an awful f***ing mess! And I don’t cuss easily, me mam’s Irish…

  10. Ronald September 5, 2010 at 10:00 pm #

    Mackie owns the creative aspect for sure (unless he had help during the design), but how much does he really own the piece of art? It was financed by public funds so the public owns the material and the piece of art too, possibly paid him too. And to whom belongs the part of Broadway it is located on? I bet that it is public too, or he city of New York owns it, or a company adjacent to the art piece, but it is likely still public. I doubt there was a sign that taking a foto is prohibited/ copyright protected – when did he copyright it? before or after the foto was taken?

  11. Marco September 5, 2010 at 10:19 pm #

    As a Christian, I think I can answer this problem fairly easily: It all belongs to God. The material that made the sidewalk, the “sculpture”, the photo, the men involved…… Call me crazy or simplistic if you will, but it does make life much simpler when you look at it that way. We have a concept…. It’s called “prefer your brother.” I don’t guess Mr. Mackie understands that concept. An idea: Let Mr. Mackie or his “party” have the photograph and see if they can make 60 grand with it. Probably not. Better yet, if he thought it was such a “great” photo why didn’t he just take one himself? Seems like there are more important issues than this needing attention nowadays, huh?

  12. Doug September 10, 2010 at 3:44 am #

    Copyright lawsuits are the new way to extract money from many who are unable to defend themselves with their own high priced lawyers.

    Take a look at what legal troll Righthaven are doing to bloggers:

    http://tinyurl.com/2clvxzq

    It’s a bigger, meaner version of what Mackie is doing. Imagine Nikon coming back and suing a blogger for reposting too much of a tech sheet from the Nikon website. I hope Congress does something useful for once and reviews and clarifies Fair Use.

    • John September 13, 2010 at 9:19 pm #

      This is another example of the expansion by lawyer’s to extract more $$$ from the general public. I doubt the trial lawyers will allow Congress to remedy the inequities of the legal system.

  13. Bill September 19, 2010 at 4:17 pm #

    That’s it. I’m selling all my camera gear, gouging out my eyes, plugging my ears, destroying my taste buds and generally getting rid of all of my seven senses because I don’t want to get sued by someone that created an object to see, an odor to detect, a sound the “artist” intended to be music, a texture that was copyrighted as a creative stimulative sensation, or ever repeat a word in my native tongue, English, that has been used in the “same or similar fashion” as a copy righted book, phrase or published article some where, some time, in human history. Good bye greedy world……(silence has most likely been copy righted by some one, too.)

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  1. [...] Keeping up with what’s going on helps keep you safe.  Here’s an instance where a photographer is being sued and needs your help.  As artists we have to protect our work, but we also have to recognize fair [...]

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    [...] Keeping up with what’s going on helps keep you safe.  Here’s an instance where a photographer is being sued and needs your help.  As artists we have to protect our work, but we also have to recognize fair [...]

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