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.

Sculptors Plagiarize Image; What Should Photographer Do Next?

New York City-based photographer Alex Brown recently discovered that a pair of Glaswegian artists, Craig Little and Blake Whitehead, known as Littlewhitehead, had “appropriated” an image he made of a young boy in a Darth Vader mask sitting in a diner booth.

The artists created a sculpture that copied Brown’s image without making any successful effort to contact the photographer.

Alex Brown's image.

A photograph of the Littlewhitehead installation.

After Brown confronted Littlewhitehead, they claimed in an e-mail to Brown that “it is never our aim to copy the work of other artists,” but then added, “we wanted to appropriate an image with a large internet presence as our starting point.” The artists call the work SPAM in reference to the ubiquitousness on the internet of the original image. (Apparently Littlewhitehead also think there’s nothing wrong with comparing the well-liked work of other artists to junk e-mail.)

“On all the blogs we found it on,” the artists continued, “none of them mentioned the maker of the image. We never knew the image had been taken by a professional photographer.”

In correspondence with PDN, Brown pointed out that “in most cases I am given a credit” when the image appears on the Web. At best, the artists were lazy in attempting to track Brown down.

Brown also takes issue with the artists’ claim that by creating a sculpture based on his image, they have created something new.

“My main objection to all of this is that I exhibit this image in galleries and sell limited edition prints,” Brown says. “By appropriating it, they directly undermine my ability to do so.”

Brown says he isn’t sure what he’s going to do yet besides draw attention to what he considers plagiarism by contacting galleries where Littlewhitehead will be showing the work. He says an intellectual property lawyer friend in London told him that, because of a precedent setting case, he would likely have no legal recourse under UK law.

These types of cases have gone different ways in United States courts, as seen here and here.

In the conclusion of their e-mail to Brown, Littlewhitehead ask, “What would you like us to do to resolve this situation amicably?”

So, what should Brown do? Seek punitive damages and ask that Littlewhitehead destroy the work? Let them continue showing the work in exchange for a usage fee? Let us know what you think.

Haiti Aftermath Coverage: A Live Chat

Photographers Chris Hondros, Timothy Fadek and Willie Davis will share images they shot in the first week after the Haitian earthquake and discuss press coverage of the disaster during a live chat hosted by BagNewsNotes, the politics and photography blog, this Sunday from 3 to 4:30pm EST. The discussion will be lead by BagNewsNotes publisher Michael Shaw and moderated by Cara Finnegan from the University of Illinois. Also participating: photographers Alan Chin, Erin Siegel and Aric Meyer; and academics Loret Steinberg (RIT), Nathan Stormer (University of Maine) and Fred Ritchin (New York University).

Several topics are on the agenda, including “how much the pictures presented a representative, as opposed to a generic or stereotyped view of the Haitian people” and “whether the pictures might have overly skewed toward human suffering and physical devastation at the expense of the general scale of the disaster, the response of Haitian authorities, the impact on different Haitian social classes, the unfolding of the relief effort, etc.”

Shaw notes that the live salon will take place hours before the Super Bowl. 

Photo: © Timothy Fadek/Polaris for Time

Friday Fun: Is It a Fuji or a Voigtlander?

We got a great response from readers after we posted this story about a supposedly "new" medium-format film camera from Fujifilm. Some readers noted though that the Fujifim GF670 Professional medium-format folding camera bears a striking resemblance to the Voigtlander Bessa III which was first shown at photokina 2008.

One photographer posited the theory that the camera has had Fuji badging in Japan and Voigtlander badging in Europe for the last year. When we queried Fuji about all of this, they confirmed that the GF670 Professional "has been previously available in Japan" but noted that "it will soon be available to the professional photography market in the U.S."

Fuji said the GF670 is "manufactured and distributed by Fujifilm" but declined to comment on "the activity of other companies."

What do you think? Take a look at the two images after the jump, the first of the Fuji sporting a two-tone look and the second of the all-black Voigtlander. Look similar?

While Fuji has not released a price for the GF670 yet, the Vojtlander/Fuji model has been selling in the $2,300-2,500 price range overseas.

Did Getty Just Repackage Its RF Dregs?

A few days ago, Getty announced its royalty-free-by-subscription collection called Thinkstock, but I couldn't bring myself to broadcast the news because it looked too much like a discount on leftovers.

RF images have long been sold a la carte. Borrowing from the microstock subscription model, Thinkstock offers subscribers up to 25 RF downloads per day for a monthly fee of $249. It's a business model that is presumably intended to address RF customer demand for more convenience, at lower prices. And according to Getty, Thinkstock will offer more depth and breadth of subject matter, with more diversity of models, than iStockphoto, which is the agency's microstock collection.

But Thinkstock doesn't include Getty's best RF images. It is made up primarily of images Getty got a year ago when it bought Jupiterimages for $96 million. The Jupiterimages collection was a big, lumbering pile of second-tier stock to begin with, and now its shelf life is expiring. The images shown here, for instance, are the first three that came up in a search on the keyword "families." Agencies used to "cull" images like these from their collections until microstock taught everyone not to overestimate the tastes and expectations of their customers. So Getty is trying to squeeze the last bit of money out of the Jupiterimages collection while it still can. And bully for them, if there are buyers out there looking for bargains like these.

Colin Finlay Discusses Working in Haiti on LinkedIn (Feb. 4)

Documentary photographer Colin Finlay will discuss working in Haiti during a special live event on business networking site LinkedIn tomorrow (Feb. 4th) from 1pm to 3pm EST.

The event is sponsored by storage manufacturer Western Digital (WD) and can be accessed by going to WD's LinkedIn Storage group tomorrow at the start of the live discussion.

Finlay hasn't been to Haiti since the devastating earthquake last month but has worked extensively in the country before and has been in touch with several groups there now. He is preparing to head to Haiti later this month.

Here's an image he shot in Haiti in 1991 with his thoughts on the photo after the jump.

Photo © Colin Finlay 2010

67 Irving Penn Prints To Be Sold at Auction

For more than 30 years, Patricia McCabe worked as personal assistant to master photographer Irving Penn, who died last year at the age of 92. Over the years, Penn gave McCabe numerous prints he inscribed to her. Now McCabe is putting 67 of those prints up for sale at an auction to be held April 14 at Christie’s auction house in New York. “Three Decades With Irving Penn: From the Collection of Patricia McCabe” will be on view starting February 22, according to Christie's.

The prints may prove to be a nice pension for the photographer’s personal assistant. In October, just one day after Penn’s death, a print from his “Small Trades” series sold for $74,500 at an auction at Christie's. At the same auction,  “Cuzco Newsboy, 1948” (shown at right) was the second highest-price image, selling for $72,100 . 

The record auction price for a Penn print was set April 11, 2008, when a print of “Cuzco Children” sold for $529,000.

Photo: "Cuzco Newsboy, 1948," © Irving Penn

 

Print Sales Portal Helps Photogs Raise Money For Charities

© Sonja Thomsen

The Collect.Give online print sales Web site provides a platform for photographers to raise money for a charity of their choice by selling an editioned print.

Founded by editorial photographer Kevin J. Miyazaki late last year, the site offers a new print every two weeks. Among the 10 photographers who have already participated are John Loomis, Emily Shur, Melissa Kaseman, Ben Huff and Dave Jordano. Today the site unveiled a new print by Sonja Thomsen (pictured above).

Hetherington's "Restrepo" Wins Top Documentary Prize at Sundance

A film by photographer Tim Hetherington and writer Sebastian Junger about a platoon of American soldiers at an outpost in Afghanistan has won the top jury prize at the Sundance Film Festival for a U.S. documentary.  The award was announced over the weekend.

Hetherington and Junger, both Vanity Fair contributors, began collaborating on a long-term project about the soldiers in 2007. Their film is called "Restrepo", after the outpost where they were  embedded with the platoon.

AFP quoted Hetherington from the Sundance awards ceremony: "This award goes to the 'Restrepo' generation, those hundreds of thousands of soldiers who come back home and become invisible."

Hetherington won World Press Photo of the Year in 2008 for an image from the Restrepo project. His "Sleeping Soldiers" installation--also from Restrepo--earned much acclaim at last year's New York Photo Festival.

Related PDN stories:
This Man Is Not a Photojournalist (August 2009 profile of Hetherington)
Tim Hetherington Tackles the Emotions of War With "Sleeping Soldiers"
Tim Hetherington Wins World Press Photo of the Year

That's a Richard Misrach Photo on the iPad

Have you seen all the photos of the new Apple iPad? That landscape photo shown on the screen is an image fine-art photographer Richard Misrach iicensed to Apple in a five-year exclusive deal.  Misrach told ArtInfo.com that it's the first time he's ever licensed an image for commercial use. 

Misrach, who is represented by Pace/MacGill in New York, Fraenkel Gallery in San Francisco and other galleries, says Apple had reviewed several of his photos. Then two weeks before the launch of the much-hyped new tablet, Apple specified they wanted to use "Pyramid Lake (at Night)."   Apple said only that it wanted to use the 2004 image"Pyramid Lake (at Night),"  as a screen saver and for other features -- no mention of the iPad, which was still under wraps. 

'What's funny is that for years I actually used the photo as my own screensaver," Misrach says. "So I guess they know what they're doing."

(Note: Richard Misrach's "On the Beach" was chosen one of the last decade's most influential photo books of the decade. Check out yesterday's PDN Photo of the Day. )