Photo Attorney reviews the pleadings ( Mackie’s complaint and Hipple’s response ) filed so far in the case and concludes that a key test in deciding Mackie’s case against Hipple will be Gaylord v U.S. She summarized the Gaylord case as follows:
The facts are convoluted, but, in sum, the artist of “The Column,” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work. The court found the stamp to be a fair use because it was a transformative work, having a new and different character and expression from that of the sculpture.
So readers, what say you? Was Hipple’s work a transformative work?
Compare Hipple’s photo (found in his motion to dismiss) to Mackie’s “Mambo” (video courtesy of KOMO News):
Consider whether Hipple’s work is less tranformative than Mackie’s. One of the issues that Hipple raises in his response is that Mackie’s own work is itself derivative of the Mambo choreography and not deserving of copyright protection.
Some of the commenters to CHS’s initial post were incensed with the notion that public art could inure to private benefit (beyond the initial commission). We looked into the issue of whether it is common for public art administrators to allow commissioned artists to retain the copyright. Apparently, this varies by agency and by contract (so it would be possible for Seattle to negotiate to retain the right – they just do not). We questioned Ruri Yampolsky , the City of Seattle’s Public Art Director about the reasons for having the artist retain the copyright. She noted that this is a generally accepted practice. When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement.