Is This Stock Photo Infringing--Or Fair Use?
A sculptor who embedded stylized bronze footprints into a Seattle sidewalk to illustrate the steps for "The Mambo" dance has sued for copyright infringement over a stock photo (shown here) of someone interacting with the sculpture.
Sculptors Jack Mackie and Chuck Greening created the footprints in 1979 and installed them in 1981. Seattle photographer Mike Hipple made this image in 1997 and distributed it through his stock agency, AGE Fotostock in New York.
Mackie learned of the image in 2007. Hipple says he and his agency complied immediately with Mackie's request in 2008 to stop selling the image. Then Mackie sued for infringement last March. The case recently gained attention after Hipple asked friends and family on Facebook for contributions toward his defense. The story started to spread in the blogosphere, where it has stirred some outrage over a citizen being sued for selling pictures of taxpayer-funded art.
But Seattle taxpayers don't own copyrights to the art in this case. The sculptors do. Hipple says his stock agency settled with Mackie. Hipple remains on the hook for infringement, however, and wrote on his blog last month that he's tried to settle the case "many times" but that Mackie "has left the settlement table and refused to return."
In a response to Mackie's claim, Hipple's lawyer argued in court papers that the Mackie/Greening sculpture is a "derivative" representation (of dance step instructions) that lacks enough originality to qualify for copyright protection.
Hipple said on his blog that he's also arguing that his use of of the sculpture is allowed under Fair Use. "If this doesn’t qualify as fair use of the sculpture, I don’t know what does," he wrote.
The Fair Use exemption allows for certain limited uses of copyrighted works without permission from the copyright holder. Fair Use is determined a case-by-case basis, considering four separate factors. First and foremost is how "transformative" the infringing work is: does it merely copy an existing work, or use the existing work to create something new? The other three factors are: the nature of the copyrighted work, how significant the "borrowed" portion of the copyrighted work is in relation to the entire work, and the effect of the infringing use on the market value of the copyrighted work.
This isn't the first time Mackie has sued over his dance steps sculpture. He sued the Seattle Symphony more than a decade ago for unauthorized use of an image of the sculpture in a promotional campaign. Because he hadn't registered the work prior to the infringement, he won only $1,000 in actual damages. In 2002, he lost an appeal to the U.S. Court of Appeals for the 9th Circuit for a higher damage award.
Against Hipple, he's seeking statutory damages, which can be much greater than actual damages. It's a good bet he's counting on the judge to leave the Fair Use question up to a jury, which is why he walked away from settlement talks: he's simply holding out for a better offer on the courthouse steps. Stay tuned.














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