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.