As photographers we’re very vocal about defending our copyrights. But what about sculptures, don’t they have the same rights as we enjoy? And what photographer hasn’t used bits and pieces of someone else’s artwork as part of their image? Think murals, statues, installations etc….
Seattle photographer Mike Hipple did just that and might be in a heap o’ legal trouble if sculpter Jack Mackie has his way in court. According to the Mark Hipple legal defense fund site…
In February 2008, I got a scary letter from the lawyers for a sculptor named Jack Mackie. In 1979, Mr. Mackie created, with public funds, a public art piece known as “Dance Steps on Broadway.” These are the dance steps embedded in some of the sidewalks on Broadway in Seattle’s Capitol Hill neighborhood. 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.
Mr. Mackie is now claiming that the photo somehow infringes on his copyright. He insisted that my stock photography agency remove the image, which they immediately did. I assumed that would be the end of it. (read more)
But of course it wasn’t. Mackie is suing Hipple for copyright infringement which according to Hipple could total over “$60,000 or more”. WOW!
So the question is, what constitutes fair use? A photo taken in a public space that contains a work of art paid for by the “public” and it does not use the work in its entirety? Apparently a court may have to decide but in the meantime we’d like to know what you think?
As a photographer is Hipple defending what could be a precedent setting case that could affect each and every one of us? Hipple suggests we think of it this way…
if Mr. Mackie is correct and this isn’t fair use, then he can file a $60,000 law suit against anyone who, when strolling along Capitol Hill, thinks the dance steps are nice and takes a photo or video. He may not find you if you just leave the image on your camera or computer, but as soon as you post it to Facebook, Flickr, YouTube, etc., he can (and apparently will) sue you. (read more)
I gotta say it again… WOW!
Here is a link to copyright.gov and the fair use law as it reads now.
via|APhotoEditor
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8 Comments at "Did This Photographer Abuse “Fair Use” Laws?"
Its item #3 of the Fair Use law linked that is probably going to save him.
“The amount and substantiality of the portion used in relation to the copyrighted work as a whole ”
Assuming the photos in fact do only show the work partially and the fact the work was paid for with public funds there isn’t really a case. If I bought a piece of art work and photographed it, as millions of people do, I wouldn’t be violating copyright. This art work was bought by the people of Seattle, making Mike a de facto owner, as a resident of Seattle. If an owner photographing art is in violation of copyright then every auction house, museum and anyone else except the artist is violating copyright. Furthermore, the photographer didn’t create a copy of the footprints.
I am not a lawyer but it seems to me that this could go either way. The problem isn’t that Hipple posted the image on a social network site like Facebook. That would be fair use in my opinion. The problem arose when he posted the image for sale on a stock photography site.
I live in Michigan and Michigan State University is located nearby. I can go to MSU anytime and photograph whatever I wish and freely post the pictures on Flickr or Facebook.
I cannot take photos of the Beaumont Tower or Spartan Stadium and set up a website to sell the images. In that case I could be sued for copyright infringement. Even posting the images on my portfolio could be construed as advertising. I also can’t go to a national park or many zoos and photograph the area with intent to sell the images.
I think the court will need to determine, “The effect of the use upon the potential market for, or value of, the copyrighted work.”
Did Hipple’s use of the copyrighted artwork result in sales of $60,000 or more? Did those sales hurt or hinder Mackie’s ability to sell images of his work?
Anyway. I am not a lawyer. Just throwing out my two cents.
Here’s another example for comparison. Christo, the artist, created a public project in New York called “the gates.”
http://www.christojeanneclaude.net/tg.shtml
You could have taken as many photos of that as you wished but you could not sell them as long as people could recognize it as the artists work.
No, that really goes beyond the pale. If the sculpture were in some private museum where people pay to get in, it would be one thing. In this instance, though, the artist was already paid for his work, and it was put on display in a public space.
Next they’ll say architects like me should get royalties for our work when someone takes a picture of it and puts it in their pictorial travel guide. Sculpture and architecture are often done on a fee for service basis. Photography is a fee per use. These two areas really aren’t comparable traditionally or logically. Short of their being an obvious sign prohibiting photographs of the work, there is no way for a photographer to reason not to use the available environment as a background.
Dan, I think you are missing the point.
There is no reason why you can’t use the work as a background in a photograph. Actually you are probably okay using it for a wedding and selling one copy to the bride and groom. However, I do know someone who was photographing a wedding in a National Park and they received a ticket for not having the proper photography license.
If you plan to use a recognizable building in a photo and place that photo on a *stock photography website* then you are required to have a release from the owner.
Fair use comes into play when you are talking about a travel brochure of some sort. That would fall under “comment” in the following section. It’s also the way “news” magazines get away with using a celebrity’s image to sell a magazine. You could not take a photo of Brittney Spears, for instance, and make a poster to sell but you can take her photo and sell a magazine based on that image.
“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.”
Here’s an interview with the sculptor:
http://seattlest.com/2010/02/04/more_on_the_dance_steps_on_broadway_1.php
Todd-
Re: Photography & National Parks. You ONLY need a permit IF:
1. The activity takes place at location(s) where or when members of the public are generally not allowed; or
2. The activity uses model(s), sets(s), or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities; or
3. Park would incur additional administrative costs to monitor the activity.
Weddings I’m pretty sure fall under #2 there, so it’s the photographers bad for not getting a permit. However, you can walk into any National Park and take a picture and turn around and sell it. However, interfere with the normal process of things and you need permits.
Thanks for the clarification Jim.
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