Is Artist's Suit Over Photo of His Bronze-Feet Sculpture Standing on Solid Legal Ground?
A photographer in Washington state seemingly has an interesting fair-use argument to make concerning his photograph which, as he describes it, depicted “a woman dancing” on a public artwork in Seattle that features bronze footprints inlaid in concrete.
His photograph, Mike Hipple says in a Mike Hipple Legal Defense Fund blog post, showed only a small portion of the sculpture by Jack Mackie. And if “a photograph taken on a public sidewalk, showing a woman interacting with a piece of public art, paid for by public funds” doesn’t qualify as fair use, Hipple wonders, what does?
But Mackie apparently disagreed with this analysis, filing a copyright infringement suit in the Western District of Washington last year against Hipple and the photo stock agency to which he provided it for commercial use. Although Mackie declined to discuss the merits of his case with the Capitol Hill Seattle Blog, it notes that artists can lose copyright protection if they don’t aggressively enforce over infringement.
The photo stock agency settled, Hipple says. And now he can’t can’t on his own defend himself properly against Mackie’s suit, because he can’t afford to pay a lawyer to go the distance on the case. Hence, he is seeking contributions on his blog.
A Photo Attorney blog post says the copyright infringement case against Mackie presents a fact-specific question on which courts often disagree. It is: whether a photograph of an art object is a derivative work that requires permission from the artist to use for commercial purposes, or a new interpretation that stands on its own two feet for copyright purposes.
The PA post links to Mackie’s complaint (PDF) and Hipple’s motion to dismiss (PDF); the latter attaches an image of the disputed photo. It shows portions of two trouser legs and two apparently human feet, wearing shoes, in the upper left quadrant, as well as inlaid bronze feet throughout the photo. About half of the bronze feet pictured in the photo are either partially obscured or out-of-focus.
The original artwork, according to the motion to dismiss, features hundreds of bronze feet.
The Seattle Office of Arts & Cultural Affairs provides additional information about the sculpture. A page on Save Outdoor Scupture! provides a photo of a portion of Mackie’s work, in context.
Hat tip: The Big Blog (Seattle Post-Intelligencer).
Additional coverage:
A Photo Editor: “The Other Side of Fair Use”
