The Other Side Of Fair Use

- - copyright

Most discussions about fair use revolve around people wanting to use photographs without paying or obtaining permission for the use. Of course there’s another side to fair use that photographers benefit from, which is when a picture has copyrighted or trademarked material in it.

Seattle photographer Mike Hipple found himself in the latter scenario when in February of 2008 he received a letter from the lawers of a sculptor named Jack Mackie. Apparently a photograph that Mike took 10 years previous and was selling as stock, featured a woman dancing along the sidewalk with a portion of Jack’s sculpture “Dance Steps on Broadway” visible. Mr. Mackie claimed copyright infringement in the letter.

My source for this information is a blog called “Mike Hipple Legal Defense Fund” (here) where Mike describes what happened and describes what he’s up against:

Interestingly, his brief flirtation with settlement came before my lawyer mentioned fair use. As soon as it was brought it up, Mr. Mackie refused to negotiate any further. Now I’m forced to fight this battle on behalf of myself and photographers everywhere—amateur or professional—who take pictures out in public. I don’t want to be here, but I can’t let Mr. Mackie bully away our important rights.

I should note that apparently Mike’s stock agency quickly settled with the sculptor using their insurance for these types of claims.

Without seeing the photograph in question this seems like an absurd case, but the problem with fair use as it exists now is that only a court can determine what constitutes fair use. That leaves Mike with the option to either fight it in court or settle. In an era where photographs are easily copied I think fair use needs a stronger definition.

More discussion on this case over at Photo Attorney. If you want to help Mike out, visit the legal defense fund blog.

There Are 39 Comments On This Article.

  1. This is something that I always wondered about during my time as a newspaper photographer. I should have been more diligent in determining if I was infringing on copyright when copying studio images of crime victims, etc for a news story.

    The sad thing is, I still don’t know.

  2. So I find it interesting that the sculpture was created in 1982 but not copyrighted until 1998. As photographers if we wait that long to copyright our work after it’s published (which should be the equivalent of the sculpture being installed) we don’t get the same statutes in the monetary value in a lawsuit for infringement. Correct? And why would the photograph not fall under as a derivative.

    Search results from Copyright office:

    Type of Work: Visual Material
    Registration Number / Date: VAu000441310 / 1998-10-13
    Title: Dance steps on Broadway.
    Description: Bronze sculpture.
    Copyright Claimant: Jack Mackie, 1946-
    Date of Creation: 1982
    Authorship on Application: Jack Mackie & Chuck Greening, 1950-.
    Copyright Note: C.O. correspondence.
    Names: Mackie, Jack, 1946-
    Greening, Chuck, 1950-

    Mackie’s lawsuit puts him on my shit list to be honest.

    • @John, I may be wrong, but I believe the only thing lost in a late copyright filing is the opportunity to claim (and receive) punitive damages for copyright infringements during the margin of time between publication and filing. Maybe someone else has more info on this.

  3. The photo in question is visible in the pdf from the case,
    http://www.photoattorney.com/wp-content/uploads/2010/02/Motion-to-Dismiss-Mackie-v.-Hipple.pdf – scroll all the way down to exhibit A.

    The sculpture does appear really very prominent in the photograph, to the extent that it rather seems to be more a photo *of* the sculpture, with half of a dancer’s shoe, rather than a photo which happens to include the sculpture. That of course may not be the point, it will be interesting to see how this case pans out.

    • @Simon,
      Excellent, thanks for that.

      Yes, still lots of questions for me. I assume the issue is because of some kind of advertising use of the image. Editorial would be allowed.

      They argue that 17 out of 226 pieces that make up the sculpture are depicted in the photograph. That’s 7.5%. Doesn’t seem like enough to claim infringement.

      One thing that’s fascinating in the Motion to Dismiss is how the lawyer argues that the sculpture pieces in the picture are unoriginal and shouldn’t be protected. Reminds me of the Fairey case where people online harped about how unoriginal the image was.

      I hate this originality test because it’s incredibly subjective and takes us further away from a definition of fair use.

      • @A Photo Editor,

        Rob, While the photo only shows a small percentage of the total work, the spirit (content) of the sculpture is essentially there in the image. Showing more of the sculpture probably wouldn’t add much more to the total communication in understanding the piece.

        I believe the question of originality comes from the history of using the stenciled dance steps on the floor. Mackie would probably argue his piece re-contextualize the original idea, entitling him to copyright the new expression.

        Another concern would be how art in a public space might limit the freedom of others expressions by removing others rights.

  4. After checking out the original photo in question, one can understand both sides. The sculpture by Mackie is specific enough in it’s concept to give real backbone to the Hipple photo. It would have been prudent for Hipple to seek permission from Mackie, before selling it as stock.

    Having said that, it seems like Mackie would be satisfied at the settlement money he already received. The fact that he is pursuing this further gives all photographers pause. Is he motivated by bitterness or greed? Perhaps he feels he’s standing up for other artists, too.

    Generally, when a party sues, they target an “offending” person or company who has substantial funds to make it worth all the stress. That’s what makes Mackie’s doggedness about this issue somewhat repulsive and absurd. It seems clear that Hipple does not have a large savings account.

    There are gray areas for certain copyright issues. When I asked the Copyright Office if posting images on your own web site is officially considered “publication”, they verbally shrugged, indicating that there are varying interpretations of this. Essentially, they place the responsibility for this on the artist. So much for the clarity of Copyright regulations.

  5. Robbin Woodruff

    Hello,
    I find this story interesting. I am a photography producer for a major corporation with a large stock database. I deal with this issue everyday. Our policy is if you
    don’t have a release you can’t publish the photo. Getting releases is
    a relatively painless and inexpensive task before the fact. After the
    fact is another story.
    Sincerely,
    Robbin

  6. All the Orphan Works, and parts of Google’s recent legal issues, could be largely avoided by lawmakers more clearly defining Fair Use. I really think that because there are is no lobbying effort, and there is no monetary potential from defining Fair Use, then there will be no effort put to this.

    • @Gordon Moat, I’m far from an expert on Fair Use, but I think it’s very difficult to strictly define it. Like “art” and “pornography.” You know it when you see it, but it’s not so easy to define.

      • @Jim Newberry, I agree that a “strict” definition may not be possible, nor even practical. However, I would think with all the attorneys in D.C. that some progress could be made. Leaving such decisions strictly up to the US Court system is a folly for the rich, and the party who can outspend the other usually comes out on top.

  7. Interesting this came up now – I recently finished reading Kembrew McLeod’s book, Freedom of Expression.

    It doesn’t explore photography use as specific as it does music and general copyright, but it is eye opening to see how some of these seemingly small judgements can have a long-lasting impact on any future lawsuits involving fair use.

    Additionally, there are many instances where individuals are threatened with lawsuits from large corporations for voilating what is very obviously fair use. However, as most individuals lack the resources to tackle corporate lawyers (even if they are in the right), they comply with the request – setting the precedent that even what should be fair ends up as not.

  8. The sculptor is exactly right. When viewed commercially, the photo is simply parasitical on another’s creative work. The photographer is disingenuous and shows total disrespect for other’s creativity.

    • @Neville, you are assigning your own estimate of the creativity of the original work in making your evaluation. In fact the question of the original work’s inherent creativity is a major question of fact to be determined.

      For instance, if I could show you a dance instruction book which showed *identical* step diagrams, making Mackie’s sole artistic contribution to the work the idea of casting them in brass and sinking them into the sidewalk, would you still argue that Hipple was a “mere parasite” on another’s creative expression?

      • @MarcW, I completely agree, the sculpture itself only has any interest because it uses something originally created by someone else. Did the sculptor credit, or get permission from the artist who created the original diagram? Or the one who created the dance to begin with?

  9. I guess the photographic equivalent would be if someone made a collage piece using 20% of their own photos and 80% of someone else’s. Wouldn’t the other photographer be pissed?

  10. Doesn’t a responsiblilty for clearning the underlying artwork (Mr. Mackie’s sculpture) fall to the licensee of the stock photo? Many stock photos feature images of protected works (the Pike Place Market neon sign or the Seattle Space Needle, for example) and it falls to the user of the stock photo to obtain those clearances. Stock agencies clearly state this in their licensing terms. It seems to me that Mr. Mackie should be going after users of the image rather than the individual photographer.

    • @jm, No. The photographer can still be sued. Even if the suit is lost the legal costs could easily bankrupt many image makers. Getty Images used to require very specific releases before ever accepting images.

      In fact, Getty Images felt that they would be open to suit if a person could recognize themselves in an image – even if others might not. (Shot from behind, side, little or no face showing, etc.).

      This is another reason for photographers to have “errs & omissions” coverage in their professional insurance coverage.

  11. A very sad story – Mackie is described as ‘an artist of the streets’. This suggests a liberal and relaxed attitude.

    Perhaps the reality is a little different and the words ‘mean’ and ‘spirit’ may be used together. IMO his attitude further corrupts society.

  12. In his legal defense blog the photographer states: “I took a photograph over ten years ago of a woman dancing along those sidewalks, and some of the “dance steps” were visible in the photo.”

    Based on this, I assumed that there was a photo of a dancer that incidentally included a bit of the sculpture. But when you look at the photograph it is apparent that the sculpture is integral to the photograph – without it, the image of a blurry pant leg and shoe on a sidewalk would be …unremarkable.

    Now I usually don’t have a problem with people ripping off other peoples, I mean appropriating and incorporating, other people’s work – but the photographer here is being a bit less than forthcoming.

  13. I retract comment 11.

    Upon reflection, I took the trouble to contact Jack Mackie by email. He replied in a friendly and courteous manner and explained the other side of the story.

    I do not feel it is my place to reproduce that here without his consent, but as with most things in life I think, there are two sides and he comes across as a very reasonable and approachable person.

    Before jumping to conclusions (as I wrongly did), it is worth having all the facts.

    I hope that for everyone’s benefit, a fair and reasonable conclusion can be reached without recourse to the (very imprecise) law and associated costs.

  14. Thank you Nick and Paul Emberger, for your follow through on this.

    Speaking of copyright, I received an e-mail today (a *portion* is quoted below):

    Dear ASMP member,

    We need to call your attention to a particularly egregious case of copyright abuse: a website that calls itself Pilfered Magazine
    ( http://www.pilferedmagazine.com ). As the name suggests, it specializes in using images without license or attribution.

    The site was brought to our attention by various members, and there is a good write-up in the Copyright Alliance Blog — see

    ASMP member John Harrington has also covered the matter in his blog; see

  15. Interesting. This tweaked my memory, thinking “a photograph of a sculpture in a public place – that isn’t infringement of copyright, I thought”. I searched through Title 17 (the U.S. copyright statute) looking for the provision I thought was there, and couldn’t find it.

    Then I remembered I was Canadian. The Canadian Copyright Act says:

    32.2 (1) It is not an infringement of copyright

    (b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

    (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

    Interesting difference between the laws I hadn’t focused on previously.

  16. Yeah for Seattle photographers. We support you, Mike! Nobody wants to go through all of this crap, but somebody’s gotta do it.

  17. It seems that just based on the photo and the “sculpture” that there is merit for something to happen.

    Copyright seems to be very muddied when it comes to images and artwork, fair use, when is it protected by copyright, etc.

  18. Are buildings seen as works of art? If so, what is stopping every architect from collecting on all the cityscape stock imagery?

    In my opinion, Shepard Fairey created an individual work of art based upon a photograph. Just as the sculptors of the Marine Corps War Memorial made a sculpture based upon Rosenthal’s photograph. Perhaps the photographer granted the right to use the image as inspiration, but what about all the stock imagery of the memorial itself?

    Where will the litigation end?

    I suppose it all comes down to individual decisions.

    • @ Bear Cieri
      I think it depends on the specific building. There are security guards in Century City (a particular section of Los Angeles) who will be quick to remind you to not to photograph certain buildings there. They are just doing their job. And in my experience, they were nice about it.

      Here’s another issue regarding street shooting: you may come upon some people having a meal on the *patio* of a restaurant … I was informed that photographers should *avoid* capturing people in this scenario.

  19. Hi Rob – As always, thoguht-provoking content here at A Photo Editor.

    The issue at the heart of this case is that the photographer, along with the stock agency, made commercial use of an artwork that did not belong to him.

    A picture of a picture, or painting or sculpture (or other artwork) must have a property release or permission letter from the originating artist in order for anyone publishing it to gain monetary profit from the image. The only time this does apply is if the artwork is in the Public Domain.

    It’s too bad Jackie is continuing the suit, even after being paid damages by the stock agency.

    The only think that’s not clear to me: If the original sculpture was created as public art with public funds, how is Jack Mackie’s copyright actually free and clear?

    That must be what lawyers are for.

    Moya
    (photographer and DOP)

    • @Moya McAllister, Hi Moya: re your comment: “A picture of a picture, or painting or sculpture (or other artwork) must have a property release or permission letter from the originating artist in order for anyone publishing it to gain monetary profit from the image..”

      I agree with this in the case of blatant appropriation like the Marlboro Man prints which were photographed by zooming into an ad in a magazine (if memory serves me right). But what about a wide angle shot in Times Square in NYC? I doubt anyone would argue that every photographer and designer who holds copyright to the work in the ads all over the buildings has a case against the photographers who take photos and market them as stock or for other legal commercial use.

      • @Andrew Darlow, Good point – in editorial uses, it’s no big deal to show these kinds of logos/billboards though reproducing artwork still needs clearance from the estate or artist. But in commercial advertising, even logos and ads that belong to other companies should be cleared for use. Most companies frown on having their Intellectual Property utilized in an advertising image for another company.

  20. jeff seitz seitz@int

    fight fire with fire, i say tear them up, and sue him ,if he try’s to reinstall them.

  21. Doug Gruber

    As the sculpture was a commissioned piece, paid f0r by public funds, the location of the installation was known to the sculptor prior to the installation. The installation was obviously intended for interactivity with the general public walking by. Why does intellectual property even apply here? Title was transferred with the final payment of the commission. The artist cannot take the physical sculpture away with him. The design and artistic effort is his, he can always claim it as his design. But the metal belongs to whatever public entity paid for it. The photographer was using his artistic license in public; he was not claiming that the sculpture was of his design. If such a lawsuit was to become successful, then any city’s installation of artwork could become so restricted as too limit public access, which is quite the reverse of PUBLIC art programs.

  22. The photographer is claiming his use of a portion of the sculpture in the image is permitted under the Fair Use doctrine, but I think he’s mistaken. Obviously I’m a photographer not a lawyer, but Fair Use doesn’t have anything to do with copying of works made with public funds — which seems to be his main argument, and he’s wrong that a casual photographer could get in legal trouble for taking a snapshot.

    The trouble he’s in comes from his re-selling of a representation of the copyrighted scultpure, not the casual taking of the photo. Interestingly, Anthony Falzone, the leader of the Stanford Fair Use Project (which is cited as a reference) is a prominent member of the “copyleft” movement whose proponents actively push for expansions of doctrines like Fair Use to try to limit individual’s copyright claims in favor of the broader “public good”. If Falzone’s advising this photographer, or if the photographer is relying on his opinions, then I think we understand where his claims on Fair Use might be coming from.

    From the Stanford U. Law School website, here are some brief examples of why certain things are, and are not, considered Fair Use: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

    I feel really bad for this photographer, a fellow Seattle-ite even, but basically I think he made a mistake and he got caught. The photo prominently uses a portion of the sculpture as one of two main elements (along with the leg and foot) in the photo, and he re-sold the image for non-editorial uses and he made money off of it. The fact that the sculpture was installed in a public venue for all to see only means the artist is expecting it to be viewed by the public, it doesn’t mean the artist is granting anyone a right to make money off of it. As with all copyrighted works, possession of a copy of the work (a downloaded song, a book, or a photographic print, for instance) doesn’t grant the owner any right to make and distribute copies of the work. And, the sculptor’s enforcement of his right to make and sell copies and derivative works of the piece in no way stifles the public viewing, appreciation, or discussion of the sculpture.

    As I said, I feel bad for Hipple. But if we as photographers expect to be able to enforce our individual copy ‘rights’ to our own images and to be able to control their distribution and their money-making ability, then we need to respect the rights of other creatives to do so as well — the copy ‘responsibilities’. Now, whether or not the sculptor in question should be pursuing a $60K judgment against a photographer with admittedly few assets is another question. But basically, I don’t dispute his right to do so.

    • @Andrew Buchanan,

      I would agree that a sculptor (artist) would be reasonably expected to protect his work. He can also create new pieces based on or extending an existing work.
      If the photo had been just of the sculpture then the case has merit. But the addition of the dancer’s leg, a live human, makes for a new concept. As a nature photographer, can I only take pictures of my own trees and grass and rocks and sky? Does the estate of Ansel Adams owe the Park Service? Does the manufacturer of the shoe in this picture deserve a royalty payment?
      I used to work in a one hour photo lab in a retail store. Company policy was that not only could we not scan a professional’s print, but the customer could not either. I had trouble with this as people would say that they owned the print often of a deceased spouse. Indeed what right does Olan Mills or whichever have to control of the face of that deceased person, or the live one either?
      I do not have the right to take an image of that sculpture and use it to sell myself as an established sculptor.
      To what extent can the owners of buildings be allowed to control images of their properties? Do the producers of the CSI series in NYC, Miami, and Las Vegas have to pay royalties to every building owner for their opening sequences and establishing shots? Doubt it. Certainly hope “fairness” has not been twisted so.