Broadway sidewalk dance art causing another legal two-step


Dance steps on the street, originally uploaded by lleugh.

The Broadway Steps are wonderful pieces of public art. But if Jack Mackie, the artist who created the work, continues to be too litigious, it might be time for the neighborhood to consider covering them up to prevent further legal injury.

In a blog post from January, local photographer Mike Hipple shared details of a legal imbroglio he suddenly found himself in over a decade-old photo:

 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.

I was mistaken. Despite my agency’s removal, Mr. Mackie is now suing me for copyright infringement and claiming the full measure of statutory damages, possibly $60,000 or more. All for a photograph taken on a public sidewalk, showing a woman interacting with a piece of public art, paid for by public funds. And it only depicts a small portion of the artwork at that.

Today the Slog was the first media outfit to wade into the murky legal waters and start to tell Hipple’s story – the Stranger’s verdict? ‘a mess’ and ‘a fairly confusing situation.’

CHS had also been tipped to the situation and has been working on the story. Here’s an e-mail from Eric Meltzer, lawyer at Imua Legal Advisors, the firm representing Hipple, to an undisclosed recipient regarding the case that was passed on to CHS:

  • Our client is a local photographer, recent father of two children and all around good guy. He took a photograph in the late 1990s that included a part of a locally famous piece of public art, Jack Mackie’s Dance Steps onBroadway. 
  • Everyone in Seattle has seen these steps. 
  • Mr. Mackie has sued our client in federal court, settled with all of the insurance company defendants, and now seeks to extract kilos of flesh from our client because, as his attorney says, he doesn’t like our “fair use”arguments (!!!). 
  • Mr. Mackie has a long and infamous history of being an overly aggressive copyright enforcer (see Mackie v. Rieser, 296 F.3d 909, 915-16 (9th Cir. 2002) and any number of press articles).  with a copyright that’s weak at best (and whose work was paid for with public money to begin with). 
  • Mr. Mackie will not, at the moment, share his damages calculations with us, but we have reason to believe that it will be in the area of $30 – 80 K.   
  • Our client is a real fighter and wants to take this case to the end and fight the good fight, but as you may imagine, he faces severe financial challenges in doing so.
  • We’ve come up with what we believe are several innovative ways to fight back against Mackie and believe, if Mackie pushes the point as far as it could go, that we will earn an excellent fair use opinion and greatly benefit the arts as a whole.

We also had a chance to talk briefly with Meltzer this morning. He emphasized his respect for the artist. “Jack Mackie is an important Seattle artist. Copyright law is strongly in favor the copyright holders already. What we have here is a case of overzealous copyright enforcement,” Meltzer said. 

Meltzer says that fair use is on his client’s side — but like any good lawyer, he’s worried about what happens when you turn over a fair use argument to a judge. “It’s hard to predict what a court would do in a fair use case,” Meltzer said.

We’ve contacted Mackie to talk with him and his lawyers about the situation and will update this post when we learn more.

This isn’t the first time Mackie has been involved in legal wrangling related to the Broadway Steps copyright. In 2000, Mackie was awarded $1,000 in a case brought against the Seattle Symphony over the work. A subsequent appeal for a larger award was denied.

We also spoke with a lawyer familiar with copyright law. She wouldn’t go on the record but did weigh in on the situation from an outside legal perspective. 

I think this is overzealous protection. Asking for removal and then having the photographer comply is sufficient to show that you are enforcing your copyright. Asking for damages in addition to removal is unncessary for what he says he’s trying to do.

Also, since the photo was available for only a couple days, and there isn’t any evidence that anyone made more than a nominal sum, I guarantee that the attorneys fees are way higher than any amount he should be able to recover. It’s fine for companies and artists to protect their copyright, but they normally do this through cease and desist letters, not through suing everyone that infringes. It sounds to me like he did send the letter and the photo was taken down. That should have been the end of it.

In the meantime, hopefully no more unwitting victims fall into Mackie’s sights.

Picture 1516

53 thoughts on “Broadway sidewalk dance art causing another legal two-step

  1. I’m one for the rule of law and not an advocate of vigilantism (extrajudicial punishment), but if there were one case in which I would wish pain, defeat, and humiliation upon another person (in this case, Mr. Jack Mackie) it is this one.

    I’m too civilized to mete out punishment myself, but I know that in the karmic, ‘golden rule’-centric world that we live in, malicious behavior like that of Mr. Mackie will NOT go unpunished.

    Beward karma’s grip, Mr. Mackie. It is never far away from any of us for too long.

  2. i always enjoyed these, and it was a nice way to spend our public money on beautifying our community. i wish now for nothing but to see them removed/destroyed, or covered up with a nice thick covering of cement.

  3. Is Fair Use the right argument here? Seems the photo would be a Derivative Work which creates essentially a new work of art. I’d expect there be a lot of precedent for this – Andy Warhol’s famous Marilyn Monroe lithograph comes to mind.

    Disclaimer – IANAL (I am not a lawyer)

  4. I remember hearing about how agressive Mr Mackie was in defending his copyright. But really, it isn’t that original a concept. He didn’t invent the dances and the design of shoe prints showing dance steps came from elsewhere, likely some teach-yourself to dance or dance school.

    Mr Mackie might want to recall what happened to Richard Serra’s Tilted Arc sculpture in NYC — it pissed people off enough and it was removed.

    http://www.pbs.org/wgbh/cultureshock/flashpoints/visualarts/

  5. Mackie sounds like a jerk and an opportunist, and more vindictive than bright. I’d say cover up the steps, but apparently the public paid for them, so screw Mackie. Taking a photo of a publicly-owned sidewalk should never be illegal.

    That said, maybe the city should buy the copyright for any art it purchases.

  6. The problem – and the reason Mackie is suing – is that he has no doubt registered his copyright and can try and claim statutory damages (meaning he needn’t show actual harm) of up to $30K per violation. While there’s no question the photo was fair use, it IS hard to be the test case when your money is on the line. Hopefully Hipple is up for it, as there is growing momentum to require that those bringing copyright infringement claims consider fair use before so doing.

  7. I always thought of sueing Jack for that dance step I could never do, the “obebo.” I can’t it spell either. I bet he made it up.

    We should stage a formal protest on Broadway. Jack, will you show up in your tuxedo this time too?

    There is more to this story…

  8. It is art in a public place! Public is the key word here. If he is such a pissy pants about it then don’t do public art. It should be assumed by anyone doing public art that the public may take ideas from it or pictures etc. Did Seattle or Washington State pay him for the art? It makes me want to pee on the dance steps. *sigh*

  9. I thought they were stolen from Arthur Murray dance books …. art? Shit no.

    The guy brings shame to the Hill.

    And why would the city or whomever, not have anticipated pic of art?

    Another shit.

  10. mackie isn’t saying people can’t take a picture of his work; he’s saying people taking pictures of his work for profit violates his copyright.

    is mackie being overzealous and/or overly aggressive? probably. is it his right to be overly aggressive under the law? yes. will he win his suit? my crystal ball isn’t working. while mackie may be a jerk he’s just operating under the letter of the law; pursing every perceived claim of infringement.

    besides, just because it’s in public doesn’t mean you can do with it what you want. i remember a post (and comments) a few years back about flowers in the public roundabouts and how people were picking them for themselves versus leaving them for others. not apples to apples but it’s someone else’s efforts for the benefit of the public; with someone else using the outcome of those efforts for personal gain. it seems a lot of people were up in arms about that; yet this is okay?

  11. I simply don’t understand – the dance steps are a piece of public artwork on a public road surface. Does the artist expect that that somehow creates a zone of copyright that forbids commercial photography that includes that road? The road surface belongs to us, the taxpayers, not to him. Perhaps the artist should have considered that before putting his artwork there.

  12. Mr. Mackie created this art (yep, it is art, and damned effective public art). he owns the copyright. Not the City. If someone is using his art piece to make a financial profit then he has every right to protect himself.

    Really, think about it. If Johnny depp decides to do a Broadway show where he readds the work of Neil gaiman and he sells tickets should Gaiman get any profit? Of coursr he should – he wrote the text. You can bet that if Mickey Mouse appears anywhere in any form of art/entertainment Disney is getting paid. This isn’t greed. This is about artists legal rights to control how their work is used.

    I love the steps. I love Mackie for making them. I don’t have a problem with him defending his work legally. It’s perfectly above board and it makes sense. This is how an art economy works.

  13. If the city was in some way liable, then yes – have them removed. As it is now, this is an issue between the artist and the photographer. Had the photographer taken a personal photograph, nothing would have come of this – but the fact that he intended to sell the photographs, well that makes this something the two of them need to figure out. No way he’s gonna get 60K or more, unless of course he made that much in sales of his stock photography. If someone sold postcards of a painting you made, you’d be upset. It’s true, the artist is being a dick in this situation – but let’s not get carried away.

  14. I don’t know if this is cool or not but I’m posting something someone wrote on another site about this issue because it’s so articulate about the issue:

    “You-all have some very strange, not to mention disturbing, notion about how art gets made.

    If I can see the artwork through the window of a gallery space, then it shouldn’t be copyrightable? Is that REALLY what you’re saying? Because, that’s just ridiculous.

    And for the rest of you: just because an artist sells their work, whether to a private individual or to a public entity, they still maintain the copyright to the work itself. That’s why they’re called “intellectual property rights” and the reason for which copyright law exists in the first place: to protect the creator from unauthorized use or reproduction of their work. For example, if you buy a new car, your ownership of it does NOT give you the right to manufacture and sell a duplicate of it, even if you had the technical ability to do so. Conversely, just because a copyrighted work is purchased by a public entity with taxpayer dollars, does not mean the creator must relinquish their legal rights in exchange; in point of fact, as owner of the work, the government agency would instead find itself in the position of enforcing the artist’s copyright to some extent, particularly if the agency itself has already entered into an agreement with the artist for its own reuse of the work (which is frequently the case – cit ref the recent brough-ha-ha when Olympic Sculpture Park first opened).

    And it’s not just about money here, people. Most artists strive to develop a unique and distinctive style in their work. Copyright, just as the term implies, provides an enforcement mechanism to protect the creator and their work from being devalued by attempts to create shoddy imitations of their product.”

  15. Cover them up!!!! when it rains in seattle they get wet and like any other metal that gets wet they become slick and a danger to the public! I don’t wish for anyone to slip and fall on this art work, BUT if they do I hope they sue the pants of the artist!!!!!!!!!!!!!!!!

  16. You have GOT to be kidding me. Whether this lawsuit is right, wrong, smart, whatever, Jack Mackie does NOT bring shame on the Hill. Have you seen the dance steps at CHHIP’s Broadway Crossing? This guy gives back to the community CONSTANTLY.

  17. AMEN.

    These too nice people don’t know a shit bird when they have been shit on.

    Public “fart” belongs to the public and the copyright should reside there too. Simple. Tax dollars bought it, now it is in the public domain, LIKE the concrete in the sidewalk. And the oh so artsy curb roll and that fully art like Metro sign.

    Give me a break.

    The guy is a bitter old queen. Sad.

  18. Remove the steps — not worth the hassle or publicity for an unpleasant artist who doesn’t understand the term “public art”.

  19. But nobody is making a “shoddy” copy of his work. They’re taking a picture of people in a public place. You are way off target here.

    He can be a jerk and try to bully the guy, but don’t suggest there was some sort of threat to his copyright or that he’s doing it because the law requires him to.

  20. Being able to see a piece of art through a gallery window is not the same as this situation. This art is not just visible from public space, it IS public space. It is literally a part of the public right of way, since it is a part of the sidewalk. I guess I can’t really blame the artist for protecting his copyright, but I really don’t like the idea of anyone, artists or corporations owning a copyright on a public space.

  21. In order to avoid such complications in the future, we should consider requiring artists who are commissioned to create public art for us to provide the work under a Creative Commons license, or maybe even to release it immediately to the public domain.

    The original purpose of copyright was to spur the creation of works that eventually become part of our public domain, not specifically to guarantee people the ability to profit every time a copy of their work is made. This has since been corrupted by those who convince our elected representatives to repeatedly extend the length of the artificially-created monopoly we grant to the creator of a piece of work. So if we, the public, are paying for a piece of art to be created, why not skip the continued-profits-for-creator part, pay him or her a fair price for the work he or she did, and get straight to the adding-to-the-public-domain part?

  22. From my reading of the story the photo in question was available for commercial purpose. It was not a snapshot to be shared amongst friends.

    He is doing exactly what the law requires him to do. I’m not suggesting it. It’s a fact.

  23. I think it’s unfair the way Mackie is being characterized here. An artist seeks to defend his copyright and goes for damages?

    I think it’s totally legitimate to pursue a licensing fee for infringement of a copyright.

    It’s exceptionally difficult for an artist to make a living. If someone uses an image of your work, you’re entitled to a licensing fee, and if you ignore the infringement for too long you’ll expire the statute of limitations, so it’s important to pursue all infringements. Today’s harmless photo can turn into tomorrow’s painful Nike add campaign that you’re not entitled to a dime for.

    In the past, when I’m pursuing copyright infringement for a work for Handsome Murals, of which I’m co-proprietor, then I simply send letters requesting the licensing fee, which I try to keep reasonable. But if that fee is not paid, we’re forced to pursue it in court to maintain our legal standing and fight for all artists right to not have their work published without permission. We need to stand together and maintain basic payment and copyright standards, otherwise, people will continue to take advantage of the average artists by using their work without permission or payment.

    Ultimately, it’s irrelevant who pays for the work, the city, an individual: doesn’t matter; the copyright is the artists unless otherwise specified in writing and agreed upon by all invested parties. Trust me when I say that Jackie Mackie is not Standard Oil. He’s just a dude trying to make a living in a world that doesn’t respect art as being a legitimate career, and here is the Capitol Hill Blog feeding into that. Honestly, CSH Blog, I think you should be a litter more thoughtful in your condemnation of Mr. Mackie.

    Let’s build a real arts economy in Seattle. Let’s respect people’s choice to protect their work. Should Sony Music and Virgin be the only ones benefiting from modern copyright law? I don’t think so.

    Joe

  24. Phil – you make a good point and it’s very true that copyright extension by people like Disney has created an unhealthy commercial atmosphere(so has Wal-Mart btw and Amazon and a gazillion others( Our society is a hothouse of commercialism right now, like it or not). And perhaps your solution works. I do think that in a world of instant internet access copyright laws will be changing in the future, I just don’t know how. It is my understanding that currently if you buy a art you are not buying the copyright unless you pay a different, specific fee to own the copyright. Which is not common practice. Imagine Robert Mappethorpe or Louise Bourgois or Damien Hirst selling the copyright to their work. They didn’t. And imagine Toni Morrison or Phillip Roth doing it. They wouldn’t.

    So the issue at hand seems to be public art. I think public art arouses a certain passion in people, rightly so. But I also think people’s perspectives on what public art is and who it belongs to are fuzzy. Am I able to graffitti public art because my tax dollars paid for it? No. Do I get to have it removed if I don’t like it. Well, maybe, if I get enough people to agree with me. But the image, the art, the work itself is the intellectual property of the artist. When they sign on to the public process they do not relinquish ownership of the image. They do not have to stand passively by while someone else profits from their work. Now, if we don’t like that system I’m all for a healthy debate. But I think an understanding of how public art functions in communities and for artists is essential to that debate.

  25. I have to strongly disagree with you, Joe, regarding Jack Mackie. The guy asked the photographer to remove the photo from the stock agency two years ago. They complied immediately and the picture was even destroyed. Then Mackie goes after the stock agency and gets a hefty settlement from their insurance company. But, apparently, that wasn’t enough for him. He has to go after the fellow artist, the photographer, who is also just trying to make a living, and who complied immediately to Mackie’s request and even offered to settle. But, Mackie feels the need to suck him dry as well – even though it has been stated that the photographer made about $60 total off the photo in question. RIDICULOUS!!!

  26. I find these steps an appealing part of the cityscape.
    However, considering Mackie’s attitude, a perfect response would be for the City to require the removal of his art at his own expense, and pay damages to the City for reneging on his paid-for-by-the-City obligation.

  27. Mackie asked for the photo to be removed, and it was—end of story. However, since he decided to attempt to make a profit off a photograph that was removed as requested, then he’s nothing more than greedy. He just wants to make a dollar at every opportunity. I do hope that since those dance steps were created on a public sidewalk, the sidewalk will be replaced with city funds so that nobody else can lose even one penny to him. The above is my opinion. The nice part is that facts can be true or false. But, opinions are always right.Nobody can be sued for an opinion.

  28. As an employee of a public agency who has spent a large amount of the public’s money on art, I could never select Mackie through our competitive process. I wouldn’t further endanger the public’s money or drag my agency through a mess like this. I’m sure others will react the same way.

    Second, who cares? It’s a very pedestrian piece of art anyway.

  29. Well, in care. Whether you like the dancing feet or no they have become a fixture on the street. They are a tourist attraction in a retail district. And a lot of people, residents and visitors, have fun with them. They do what good public art should do – they engage and entertain people in the midst of their routine in the City. The only thing pedestrian about them is that they are, well, feet…

    And I’m giving up. Is Jack Mackie a jerk? Maybe. Are public art, copyright issues for artists and open access to art in our daily lives important topics worth thinking about? Yes.

  30. The art value of the dance steps is like a one trick pony – do it – and then not much more.

    As quality art, they get a D- … by contrast murals and sculpture get you something new each time you take a look.

    Recycle them, the are brass and can be melted, sustainable, right?

  31. I agree with pretty much anything that Mr. Wells has said on this topic.

    The photographer in question, I assume, knows to get model releases when he photographs people? Then he should be sufficiently professional to understand what a derivative work is and how he can prevent stepping on other peoples’ copyrights with his own work. Not necessarily malicious infringement, but still it displays a prevailing attitude that artists and other creative people live to release their work into the world.

    Still, Mr. Mackie, although perfectly justified legally, is trying to swat a fly with a Howitzer. The cease-and-desist, which was obeyed promptly, should have been sufficient and the continued harassment is overkill. But everyone has insurance, so what does it matter? (tongue in cheek) This is why insurance rates are so high.

  32. Seems that suing – and then hoping defendants will settle – is a source of income for Mr. Mackie. However this time the case may end up in court, decided by a judge. That decision may set a precedent that Mackie does not want to set for artists that have more valid copyright cases. Mackie, you are screwing it up for the rest of our talented artist corps – and making yourself look like a fool.

    Many in the arts community work hard to make art a part of the public experience. There are probably an equal number of people that fight hard to not spend public dollars on these projects.

    Mr. Mackie, you are loading the anti-public art crowd with ammunition. Not cool, not cool…

  33. The photographer has stated in his blog that he doesn’t have insurance to cover this. And, the fact that “everyone has insurance” is an absolutely ridiculous and irresponsible justification to file frivolous and unmerited lawsuits!

  34. Mackie is an class – A jerk. Even though he was the artist, its a public project and public space.
    And I wonder what dance instruction book he copied the images from? Maybe they will sue him. Because he sure as hell did not originate the concept or image. He just copied it a different medium.
    At least the photographer was being more original.

    I hope this court case brings enough attention to the shallow and pompous Mackie so that no one wants to hire or buy his art again.

  35. All art is theft!!! Who came up with the dance in question? Not John. This is the same type of bullshit Chulliy pulled a few years ago.

  36. does this mean that every pig in Seattle is up for copyright infringement???

    Mr Mackie — get a life and not at the expense of others who have already paid you for pleasure of your art, be happy in knowing it is well viewed and no one can pick it up and transport it to their neighborhood.

  37. When I was a kid my parents took my sister and I to New York. I remember an alley off Broadway where there are dance steps very similar to these embedded in the concrete. My Sister and I spent quite a lot of time trying to do the dance steps an had to be drug away.
    Those steps had numbers for when and where to place your feet also. I don’t remember the arrows though. I wonder if Mackey didn’t copy someone else’s artwork of 50 years ago?
    I guess it could be a coincidence. Dancing footsteps on Broadway,…..I guess.

  38. Mr. Mackie suffers from a not so rare condition called Rectal Echo. It is the result of having your head so far up that oxygen is hard to come by, you become narcissisticly delusional and potentially harmful to yourself and your community. Unfortunately, there is no known cure and it is mildly contagious generally affecting those with capitalistic leanings. In cases like this the best course of action is isolation and frequent enemas in hopes of dislodging the now shrunken head. Avoid all contact and shower frequently.

  39. “Have you seen the dance steps at CHHIP’s Broadway Crossing? This guy gives back to the community CONSTANTLY.”

    I would think so, but at what cost? That fun doesn’t justify the expense of other artists.

  40. What a major ding dong!
    I believe that artist should stick together not destroy each other. It does not matter if your a photograph, painter, sculptor… an artiste is an artiste!

    If I was going around suing everyone that uses my work I would have no time to work! I was mad at first and then I just “chillaxe”! Now I just send a letter and voila it is settle. Often I do nothing, I see it has a small tribute to me.

  41. I disagree too Michael. I’ve lived in Seattle since the ’60s. I have seen photos of these steps in newspapers, magazines, books, and on TV for years. I’ll bet the artist received no fees for most of those reproductions, and it doesn’t sound like the artist has ever hit any of those folks up. So what makes this case different? He sounds like a grade A hypocrite to me.

    You don’t necessarily need a model release for every photo, esp if it’s in public. How else could they reproduce crowd shots? So I don’t think having art in a shot should matter either. Having that picture reproduced in a magazine or book is not the same as someone taking the picture and making a t-shirt or logo out of it.

  42. When an artist creates an artwork, he or she authored it and should ALWAYS retain copyright. Don’t try to punish all artists because you don’t agree with Jack Mackie. There is a reason that VARA exists, even though some government agencies do try to make you wave your rights.

  43. I won’t try to pretend I know anything about copy rights and who is right or wrong here. What infuriates me is the fact that Hipple represented an agency that in turn paid some form of restitution to Mackie and removed the photo from their catalog. Yet Mackie wasn’t satisfied with that and now is suing the photographer. As far as I am concerned, Mackie protected his copyright by having the agency remove the photo from the catalog and accepting payment. By suing the photographer, it went from doing the right thing to just plain greed. So who does he go after next; the lawyer for defending Hipple?

  44. Please tell us if the photographer has a way to accept donations to his legal fund.

    This makes me very sad as a photographer, and I want to help.

    Thank you for sharing this story link via FB, where I found it.

    ~Snow

  45. Wow ! I thought they were a rather funny group of singers and comedians in the other washington.
    How wonderful it is that we actually have an artist in capitol hill that thinks he is omnipotent and can sue people for taking photos of public property that he designed.(or did he steal the idea?)
    Now that I know his name I will be sure to ridicule him at any opportunity that comes my way. He is the south end of a northbound horse.