Artist Sues Photographer For Transformative Photo Of Public Artwork, Even Though Photographer Took Down The Photo

from the step-on-this dept

Thu, Feb 4th 2010 6:43am — Mike Masnick

A whole bunch of you sent over yet another story of copyright law gone wrong. An artist named Jack Mackie, who created a piece of artwork made up of bronze shoeprints buried in a sidewalk in Seattle (I'd post a picture, but we'd probably get sued) apparently got upset that a photographer took some photos of it. Remember, it's on a sidewalk. In a public place. And it's a piece of artwork, so people are going to take photos. In this case, the photographer, Mike Hipple, took a photo that was a clear transformative work, rather than a straight copy. The photo, which you can see here, featured someone's feet standing on the art installation -- something you would imagine makes a lot of sense as a commentary on the artwork (since the work itself is of of shoeprints). Cool, right? Not according to Mackie. Hipple posted the photo to a stock photo website -- which does no damage whatsoever to Mackie's work -- and should only call more attention to it. No matter, Mackie sent a legal nastygram. But here's the thing: Hipple complied. He took down the photo and erased it. He no longer has a copy of it. So he complied with the nastygram.

And Mackie sued anyway. He actually waited a year, and then sued, even though the photo had been gone since just a few days after the nastygram was sent. It seems like this should be a clear transformative use. It wasn't just a photo of the artwork, but added a different element that acted as a bit of commentary on the work itself. It's hard to see how this would have even the slightest negative impact on the actual work or the artist. This is just the sort of ridiculous situation that arises when people are told that they "own" something that cannot be owned.

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Filed Under: artwork, copyright, jack mackie, mike hipple, photography, transformative

38 Comments

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dwind (profile), 4 Feb 2010 @ 6:50am

Questions
Did he donate footprints to Seattle or did Seattle buy them or commission the artwork? At any rate I'd suspect that the city of Seattle owns them so I'm confused.
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Tom Landry (profile), 4 Feb 2010 @ 6:57am

Ironically all Mackie did was copy the instructional step prints from a typical dance studio floor for his own work.
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Nina Paley, 4 Feb 2010 @ 7:02am

Re: Questions
Seattle owns the tangible work, but Mackie thinks he owns the idea. The idea of footprint dance diagrams. I'm sure Mackie pays regular royalties to Arthur Murray...he doesn't? Someone please sue him.
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chris (profile), 4 Feb 2010 @ 7:14am

Re: Questions
Did he donate footprints to Seattle or did Seattle buy them or commission the artwork?

i don't think the issue is the validity of the claim of copyright. the sculptor sent the letter and the photographer complied.

i think the issue here is the dickmove of suing even after the photographer complied.

i think some ambulance chaser convinced the sculptor that he could settle out of court for some fraction of the suit. after all, the photographer already caved once, why not squeeze him again for some money?
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John Doe, 4 Feb 2010 @ 7:19am

I get more depressed everyday...
The more I read here the more depressed I get about the state of business in this country. Heck in every country. There is literally no way to create art, software, music or much of anything else without getting sued by one or more "rights holders". How can new businesses be created or compete in the marketplace without being strangled by copyright and patent issues?
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Call me Al, 4 Feb 2010 @ 7:31am

I think that any city which allows the public display of artwork in the streets should include a "don't be a dick" clause in their contract with the artist.
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bwp (profile), 4 Feb 2010 @ 7:32am

Re: Re: Questions
-- Seattle owns the tangible work, but Mackie thinks he owns the idea. That's a big issue to me. If I commission a piece of art and negotiate a fee for that piece of art, I want to own the idea as well. I don't want the artist to see that people love my piece of artwork, want one just like it and hire the artist to make replicas. So in this case, this piece of art should belong, imho, in total to the city of Seattle. Mackie should never be allowed to make another cent off of this piece of art nor control who does or doesn't see it, the city of Seattle should be the exclusive rights holder in those instances. Additionally, if another city wanted Mackie to create a similar sculpture for them, he should be barred from it because it would be a derivative work from something that he has previously created and sold the right to(that's assuming the contract did actually include the selling of all rights to the work which should be the only way that a public entity do business with public money).
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Tom Landry (profile), 4 Feb 2010 @ 7:51am

Re: Re: Re: Questions
I know its naive but wouldn't it be better if The city of Seattle AND Mackie AND the public were allowed to use it without all the excess legal baggage?
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bob, 4 Feb 2010 @ 8:00am

Ouch
When I was in Seattle I slipped on that crappy sidewalk.
I like the sculpture of the people waiting for a bus that stands on a corner in the Fremont District right in front of an outstanding Greek restaurant. the one with a dog with a mans face. I always thought it was an homage to the movie "The Body Snatchers" but I had that wrong, oh well I like my thought better.

http://www.seattlepi.com/getaways/101096/intr30_top.html
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HymieS (profile), 4 Feb 2010 @ 8:04am

Anyone remember Barry Bricklin?
Barry Bricklin was the man that introduced the original Subaru to the US. He later went on to produce his own line of cars. The 'Bricklin' was a Gull winged sports car. Now the "rub",,, It seems that a part of the car design appeared to be similar to design of a car that was made some 50 years prior to the Bricklin, and Barry was sued for 'copyright infringement'. Even though the company that made the original car had been out of business for over 50 years, it seems that the design copyrights were bequeathed to the heirs of the designer. FYI,,, I believe 'design copyrights' have a life span of 150 years, and now with the millennium copyright act, that can be renewed and extended.
Just look at Disney,,, The original drawings of Mickey Mouse have been around for almost 80 years and are no longer being used by the Disney corporation itself. Yet they have no problem suing anyone that tries to use them.

"Hey,,, That art looks just like something I drew on the sidewalk with chalk almost 60 years ago,,, I think I'll sue the artist,,, LOL"
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Anonymous Coward, 4 Feb 2010 @ 8:06am

My solution
As a photographer, after being nice enough to take down the photo and STILL get sued. I'd go make another photo of myself urinating on Mackie's work.

and I would send a large print to Mackie.
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Anonymous Coward, 4 Feb 2010 @ 8:08am

It doesn't matter who baught or owns an original piece of artwork. The copyright to the art does not automatically transfer unless specifically designated.
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HymieS (profile), 4 Feb 2010 @ 8:11am

Re: My solution
AMEN !!!
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william (profile), 4 Feb 2010 @ 8:29am

hold on, if this work is commissioned to Mackie by the city government, wouldn't this be considered work for hire?

In this case, he doesn't own the copyright anymore isn't it?
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Speaker, 4 Feb 2010 @ 8:52am

Re:
Is Mr Mackie going to pay any of the dance studios who have copyrighted works depicting dance steps? Seems like his work, like Mr Hippie's, is a derivative works and not that original.
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HymieS (profile), 4 Feb 2010 @ 9:19am

A derivative or transformative work?
Could you imagine some descendant of Francis Scott Key suing the U.S. Gov't and every professional sports team for using and broadcasting the words to the Star Spangled Banner? Remember,,, It was written as a poem,, He never gave permission to have it set to music. Or is that considered a derivative / transformative work?
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John Doe, 4 Feb 2010 @ 9:33am

Re:
I may be mistaken, but to be considered a work for hire there usually has to be a contract stating such. Artists are granted copyright automatically short of having such an agreement.
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Valkor, 4 Feb 2010 @ 9:59am

Easy to reproduce the "infringing" content
Do we have a couple of dozen volunteers with Flickr accounts in the Seattle area? We can bury this guy with amusingly transformative pictures of his public artwork.
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taoareyou (profile), 4 Feb 2010 @ 10:11am

Just thinking
If a photograph of artwork viewed in public can be considered a violation of copyright, what about photos with cars in them. Photos with buildings in them? Photos of people wearing clothes and jewelry? If this had any merit whatsoever, I would think the majority of personal photos on the Internet would have to be taken down.

This would just leave pics of naked people in empty rooms. I'm ok with that.
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taoareyou (profile), 4 Feb 2010 @ 10:35am

When did it become that the photographer does not own the photos he takes?

What about Google streets? Do they pay everyone who has their artwork photographed? I see a new business model:

1. paint pictures (Don't spend a lot of time on this step, since the quality of the art is not important, just make sure it's your own work)

2. display them on a public sidewalk and wait for the Google Van

3. Sue google for a few million, settle for 5 or 6 hundred thousand.

Consider this too, I've recently seen pictures of some artwork made from old tires. I'm sure the design of those tires belongs to someone. Should the tire companies sue? Sure the artist transformed them into something else, but a photograph is not a sculpture is it?

The entire idea that someone else can own the copyright on photos you take in public is absurd.
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Richard Cant (profile), 4 Feb 2010 @ 10:43am

Re:
"It doesn't matter who baught or owns an original piece of artwork. The copyright to the art does not automatically transfer unless specifically designated."

Yes - there was a really bad court decision a few years ago that established that particular piece of stupidity.

If I was the city of Seattle I would get a man in with a pneumatic drill and destroy it. They have the right to do that.
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Anony1, 4 Feb 2010 @ 11:18am

This media attention will obviously bring lots of good will towards Mackie, and his work right (rolls eyes) ?

Hey Jack, ever hear of cutting off your nose to spite your face?

I know one person who would never consider being interested in this person's work ever: MYSELF.
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someone who actually knows what he's talking about, 4 Feb 2010 @ 11:48am

if the original "artist" didn't register the copyright until after the photo was taken down, the case will be dismissed. if you don't register your copyright, the only remedy you can get is an injunction -- a court order saying "stop doing this." if the guy already stopped, the most the court will be able to say is "don't do this again." and the photographer won't care.
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Anonymous Coward, 4 Feb 2010 @ 12:26pm

Somebody should ring Mackey's doorbell and punch him in the face. Then claim it wasn't an assault but "performance art". If he takes photos of the damage, sue him for copyright infringement for taking pictures of your art...
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Jamie, 4 Feb 2010 @ 3:01pm

When this goes to court, if the artist uses the photographers photo as 'evidence', could he then sue the artist for using the photo without his permission? Now THAT would be funny.
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:), 4 Feb 2010 @ 3:04pm

Mount Rushmore.
Stop taking pictures of Mount Rushmore now! or face the consequences.
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:), 4 Feb 2010 @ 3:11pm

Private public owned open spaces.
http://sfist.com/2010/01/29/map_secret_popos_privately_owned_pu.php

People should be careful as there is some "open spaces" that look public but are not.
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:), 4 Feb 2010 @ 3:14pm

Lost and Found.
People should get the slab of concrete the art is in and send it to the owner of the art, he obviously left on the street and is being abused so is the duty of a good citizen to help him have his art back where it belongs in his hands.
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rockman, 4 Feb 2010 @ 8:27pm

warhol
its not arthur murray, its andy warhol.he did some dance screen print pop art shit in the sixties so mackie not only is a dick he's a he stealing dick.any kind of post modern attempt at art most generally has to be referential to something preexisting to create meaning by displacing the original meaning with ambiguity, to decontextualize the sign or semiotic significance.fuck him his shit sucks anyway
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Scott Moore, 5 Feb 2010 @ 8:25am

Mackie is an idiot
It's bad enough that as artists we have to deal with corporations hijacking copyright law, but an artist suing a photographer for a derivative photo of a public artwork, paid for with public funds, on a sidewalk, is just wrong. The implications are also scary.

What happens to all the pretty photos of the Space Needle? Can the space needle start suing artists and say that only the space needle can sell pictures of the space needle? What happens to coffee table books? If a photographer creates a photo book of Seattle, can he be sued if there are any photos of public art in his book?

And while I understand the photographer got $60 for the photos, he did comply with Mackie's original request to take down the photo. Mackie is just being an idiot, and I would encourage Seattle residents to write a letter to the Arts Commission and encourage them to NEVER do business with Mackie again.
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Anonymous Coward, 5 Feb 2010 @ 8:59am

I'd have sent his letter right back with FUCK YOU in bold type across it. No lawyer in the country would be able to help this dickhead. Comply with that.
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Jack Mackie Sucks, 5 Feb 2010 @ 1:14pm

Mackie needs to stop stealing other peoples ideas and claiming that it's his original work.

Apparently the state of the current economy has hit Mackie hard and he needs to find a stream of income (the law suite). Or, maybe his work sucks and he can no longer afford to support himself since nobody wants his rehashed art work from generations past.
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Nick, 6 Feb 2010 @ 11:54pm

Jack Mackie
I would like to meet this Jack Mackie and convey this very simple message: FUCK YOU. And I just noticed a very similar sentiment above, but I will not offer an expansion on my earlier statement.
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Paul, 7 Feb 2010 @ 2:44pm

steps
Since when can you NOT take pictures of publiclly funded art?!!! My tax dollars damn well paid for that crap I guess I can flip a shutter at it!

Someone do us all a favor, peal these out of the sidewalk and mail them back to mr Jack Mackie. That kind of narrow thinking we don't need.
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Chris (profile), 9 Feb 2010 @ 4:56am

Overreaching
I'm still confused by the specifics of the case and how this is even being entertained. An artist made a piece of art for the city, using the city's money, and people go past it taking pictures of it because it's not only on a public sidewalk but an artistic interactive landmark.

What reason does anyone have to seek his permission before showing it to people who may never visit Seattle? What possible reason does the state have in enforcing such draconian laws? I think if this other artist made, or was attempting to make, money off the work without any modifications it would be a different story, but I guess I'm just not seeing the harm in combining your work with others to make something better, which is exactly like what Jack did here.

Jack lives in a time without the internet, and worries that the public art he created on a public sidewalk may be distributed to people who...he didn't authorize their consumption. What worse? The law is on his side.
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Scott Moore, 15 Feb 2010 @ 12:21pm

Jack Mackie and Copyright law
It does appear that this is a terrible case copyright abuse - by that I mean suing, not someone trying to take pictures of it.

We really need to change copyright law. It's not at all what it was intended to be. In fact, the intent of the constitution wasn't to ensure revenue for the artist at all. The founding fathers were more concerned with the general welfare of the people and the advancement of science, as the constitution reads "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries".

Clearly this kind of lawsuit does nothing to promote the progress of science and the useful arts, it only serves to cost taxpayers and citizens money while some knee jerk asshole tries to squeeze people for money and control something that was paid for by the public, and displayed in public.
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Scott Moore, 17 Feb 2010 @ 5:33pm

Mackie sues the Seattle Orchestra
Here's a link to the court case with Jack Mackie and the Seattle orchestra. Clearly he got spanked by the courts, but he kept on going. The case notes are very interesting. Given the findings I would think future plaintiffs could file counter suits for "frivolous lawsuits".

http://cases.justia.com/us-court-of-appeals/F3/296/909/559842/
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terredee, 11 Mar 2010 @ 1:38am

slimy greedy jackie mackie
Looks like Mackie stole the idea from an old-time dance studio, took the City's money to create a public work, sued the symphony and its graphic artist who used a photo in a collage for a symphony fundraising brochure (2002), then claimed he would have charged $85,000 licensing fee. He got $1000, which is about that much too much. But partly that was because he hadn't registered his copyright with the government.

What a jerk. Tell you what, if I was involved in commissioning public art in Seattle, Mackie wouldn't see another penny of public money.
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