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.

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.

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.

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)

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.

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.

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

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.

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?

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

Here is my take, long winded that it might be, on the topic.

http://thefocalplane.blogspot.com/2010/02/infringment-or-fair-use.html

Thanks

-Paul

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.

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.

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

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.

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.