Another Fair Use Debacle: Photographer Settles Bogus Copyright Threat From Artist

from the lame dept

Last year, we wrote about the absolutely ridiculous situation in which an artist, Jack Mackie, sued a photographer, Mike Hipple, for copyright infringement. The details of the case were pretty crazy. Mackie had created a piece of public artwork with public funds, putting instructional dance steps into the pavement on a sidewalk in Seattle. Hipple did not photograph the whole thing. Instead, he took a photograph of someone standing in a couple of the footsteps, and included a few others around it. It's hard to see how anyone could say this was not fair use. It's transformative, and it most certainly would not hurt the market for the original artwork. The issue was that Hipple put the image up on a stock photo site for sale, and Mackie apparently believes copyright covers a hell of a lot more than it does. The other crazy thing: after receiving a takedown letter, the image came down... but Mackie still sued.

Hipple was planning to fight the lawsuit, but just like the Andy Baio/Jay Maisel situation, it appears that Hipple realized it was better to settle than to risk huge statutory damages. The statement about the settlement seems pretty clearly done with the approval of Mackie's lawyers, and makes you wonder what else was going on behind the scenes. Tragically, unlike Baio, Hipple appears not to have received permission to relay the details of the settlement. That's really too bad, because this is the kind of information people need to know about.

Even worse, Mackie response to the settlement has been nothing short of obnoxious, and includes some blatantly false statements about copyright law:

Artists hold copyright to their work, period. The Federal Law that states this was well vetted and argued before becoming law. This law comes with strict standards that must be met to gain copyright. I met all of these standards. My copyright is secure meaning it comes with protections and it comes with controls. Artists are the only people who get to say how images of their work will be used.

That's simply not true. Artists are not the only people who get to say how images of their work will be used. That's the entire point of fair use, which it appears Mackie is denying. This is another reason why these kinds of settlements, while understandable, are so tragic. They reinforce these kinds of ignorant claims from copyright holders who wish to deny fair use. Mackie continues:

I do not want my work to be part of a coffee company's ad campaign. I do not want my work to be part of a sales pitch for condos on Broadway. I do not want my work associated with banksters... all of which I have had to deal with. I want my work to be seen as it was intended and in the setting for which it was created - Seattle's sidewalk on Capitol Hill, Broadway. I do not want it used by whoever might think it a cool idea to appropriate the image for their current fancy.

What you want and what the law allows may be two totally different things. Look, I don't want to have to spend time debunking your cluelessness on copyright law. But that doesn't mean the law allows me to sue you over it. Furthermore, copyright law has nothing to do with "associations." It doesn't have anything to do with whether or not you like someone using your work in a certain manner. If it's fair use, they absolutely can use the work in that way. Your own desires have nothing to do with it.

It was with glee that I took the news of Tom Petty sending cease and desist orders to Michelle Bachmann for appropriating his work without his permission.

With "glee" and some additional total ignorance about the nature of copyright law in this country... As we noted recently, Tom Petty has no legal leg to stand on here. That's because his music is licensed out for public performance with ASCAP or BMI, and if the venues where Bachmann is playing these tunes has their ASCAP/BMI licenses in order (as they almost certainly do), he's got nothing to stand on. That's the way US copyright works when it comes to music performances on such licensed music. But, apparently, Mackie has no interest in actually understanding how copyright law works, but prefers his mythical version in which it's some sort of "moral rights" that are not present in US copyright law, no matter how much Mackie dances around and pretends they are.

Between the Andy Baio situation and the Mike Hipple situation, it would be great if people started to recognize what a horrible setup copyright law's statutory damages provisions are. They allow artists like Mackie and Maisel to shake down other artists over work that those other artists believe is fair use. The risk of a statutory damages award is simply too high, and so these artists are forced to submit, to pay, and to stifle artwork. It seems like statutory damages provisions do the exact opposite of the stated intentions of copyright law to promote the progress, doesn't it?

Filed Under: copyright, fair use, footsteps, jack mackie, mike hipple, photograph, public art, seattle