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Jury will hear Broadway Steps copyright lawsuit

Step 2, originally uploaded by D G H.

A copyright battle from the sidewalks of Broadway will go before a federal jury in July.

An announcement Tuesday morning on the Mike Hipple Legal Defense Fund page on Facebook said the trial to hear the photographer’s defense against allegations of copyright violations is scheduled to begin July 11th.

“Is this good?” one supporter on the page asked. For photographer Mike Hipple, that will depend on whether the jury believes the photograph in question (see below) violated another artist’s copyright and, if so, whether that artist should be compensated for the damage done.

The case stems from Hipple’s photographs of the public art known as the Broadway Steps and artist Jack Mackie’s sometimes fierce defense of his copyright related to the City-funded work.

In a blog post from January 2010, Hipple detailed the legal imbroglio he found himself in over a decade-old photo of the Steps:

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.

In a legal process that has been playing out since February 2009 when the complaint was first filed, the United States District Court case is now winding its way toward a July trial after a good amount of legal back and forth including new lawyers for Hipple and attempts by both sides to bring the case to a hasty close. Mackie’s arguments against Hipple’s fair use claims were rebuffed by Judge Robert Lasnik — part of the Mambo is still the Mambo — but Hipple’s attempt to have the case dismissed on statute of limitations grounds was also rejected by the court.

Stock photo services Age Fotostock and Publitek are also named in the suit.

From the lawsuit documents, a screen grab of the stock photo Web site and the image at the center of the battle.

Mackie’s case seeks payment of his legal fees and monetary damages that would be determined by the jury:

Meanwhile, here’s Hipple’s legal answer to the suit:

Hipple has also filed a complaint against Age Fotostock saying it “failed to act with reasonable skill and ordinary care when it overruled Hipple’s request to pull the image.”

Mackie’s copyright document


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33 thoughts on “Jury will hear Broadway Steps copyright lawsuit

  1. All publicly displayed art and any associated copyright should be held/owned by the public, not the artist, not the city, not the county or feds, but the public, period end of story.

    No deal with any artist for public art should move forward without full release of copyright to the public.

  2. In no possible circumstance has Mackie lost $60,000 over micro stock images that depict a portion of the Capitol Steps. He makes money and a name for him selves by filing ridiculous lawsuits demanding damages far out of proportion to actual harm.

    And the city would do well to require that future city-funded public art installations include a public copyright as well. Or place it behind an ugly fence that separates it from the public environment, to better protect the artist’s private copyright interest.

  3. Agreed. When this first came up, several people with extensive knowledge of copyrights weighed in and said that since the City commissioned Mackie to create the art and since it was in a space publicly and the like, that it was considered public for folks to do with as they see fit. Apparently, Mackie has enough money to dispute that. Since he’s got that much money, he can just hop on a plane and get outta town. He IS a troll.

  4. It’s PUBLIC art embedded in a PUBLIC sidewalk…it’s ridiculous that this wasn’t thrown out years ago.

    Jack Mackie is not a hero for artists and their rights.

  5. Im so sick of hearing about Mackie. I hope he loses this big time.
    Not only is it public art – paid for by the city. But Mackie did NOT invent those dance steps. He himself is copying something that all ready existed.

  6. …Mackie may be an asshole and this case might not have merit but…

    In general, owning a piece of art does not give one the right to make money off of said piece of art. The artist retains copyright rights. This is smart and wise and good. And the public ownership is a red herring.

  7. Fair enough.

    But why is he suing for $60,000 when the picture was taken down as requested? And the picture made less than $50, why $60,000?

  8. I’d love to see these removed. These are a lawsuit danger to anyone who walks near them. Next time it’ll be another poor, unsuspecting sap.

  9. I’ve no idea but this sentence is interesting:

    “Hipple has also filed a complaint against Age Fotostock saying it “failed to act with reasonable skill and ordinary care when it overruled Hipple’s request to pull the image.”

  10. Well put. When the Cloud Gate (bean) sculpture went up in Chicago, they laid out strict use rules, where for-profit use had to be licensed from the city (or artist, I actually can’t remember). Non-commercial photography is A-OK, but commercial photography is strictly regulated. People bitch about it, but it seems fair to me: they don’t want people to profit off of their copyright. Yes, it’s a public object in a public space, but profiting off of that object without permission is forbidden.

  11. When I first came to Seattle and this neighborhood, I thought it was fascinating that these steps were livening up the otherwise monotonous pavement. I sometimes saw people doing the dances on them. Now, frankly, I’d prefer to see them removed and given back to this artist. They do not represent what I love and cherish about Capitol Hill. Every time I look at them now I’m going to think about the fact that one artist tried to destroy another artist, why, to make a point? To make a little more money just because he could? I’m not sure I really care, because any decent person wouldn’t go this far. To me, this is just another example of American self-centeredness and greed.

    By all means, if I saw a petition to remove the steps I would sign it. Let’s fill the hill with art made by people who understand what public art is and the value of it beyond what they can extort through the legal process.

  12. Article I Section 8 Clause 8

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    You can look at the art. You can pet the art. You can take pictures of the art. If you try to make money from the art the copyright holder (in this case the artist) can sue you for damages. Pretty fucking simple. You want to make money from the art? Negotiate a fucking contract.

  13. you aren’t that Mackie fuckwad or his troll of an attorney are you?

    Don’t try and feed us the bullshit about intellectual property and creativity. the copyright was registered in >>1998<

  14. Dear Jack Mackie,
    Get over yourself you self-important media whore.
    Are times THAT bad for you that you need to go after ANYONE that might possibly garner some cheap income for you???
    Get a grip and get a f&#*ing life.
    I’ve lived on the Hill since 1984 and you should be happy that your work is celebrated and not destroyed along with the rest of Broadway.
    Be ashamed. Be VERY ashamed.

  15. So a guy Xeroxes some dance steps out of an old book, or the back of an Arthur Murray record, has them cast in bronze, calls it art, and gets the city to pay for it. Now he’s saying the stuff he ripped off from some other source and sold to somebody else is now “his”?

    Good luck with that.

  16. Agreed, every time I walk by the damn things I feel a sense of disgust. Let’s just jackhammer them out of the sidewalk already.

  17. I suppose if I photographed you on the street and used your likeness to market douche-bags you’d be just fine and dandy with that.

  18. If you don’t defend your copyright now, when do you begin? After Hallmark makes a line of cards bearing your copyrighted work which you haven’t defended and therefore has fallen into public domain?

  19. This should be allowed because it showed only a small part of the steps. Mackie has to defend his copyright or lose it, and I don’t think the artist should have to surrender copyright just because the art is in a public place. If someone wanted to sell prints of public art, they shouldn’t get to keep all the money from it. But in this case the derivative art is showing just a small part of the steps. Intelligent people would settle this for a small one-time fee in acknowledgment of the copyright instead of going to trial.

  20. Mackie did not invent the dance.
    Mackie did not invent a graphical depiction of footsteps on the ground.
    What Mackie did do was take an existing idea and an existing dance and cast it in the sidewalk for the city, paid for by the city. It’s nice work actually, but this lawsuit is ridiculous and I hope it ends his career as a public artist.

  21. I don’t think we need to remove the steps, but a prominent warning should be displayed that you will be sued if you photograph them.

  22. That’s not true. Trademarks much be defended or lost. Patents and Copyrights need not be defended actively, they are in effect regardless of uncontested violations.

  23. Citing the Constitution opens up a really important point; does a particular interpretation/application of copyright actually promote the arts and useful industries?

    This kind of claim for photography is severely limiting other art and use in public spaces. Anyone filming on Broadway now needs to work around the steps — and presumably other copyrighted `public’ objects — to be safe from a risk of an enormous lawsuit. Buildings can be copyrighted, which means there are streets and city quarters where everyone photographing or filming takes the same risk, in case they ever make money off that work. *That doesn’t advance the arts.*

    For that matter, it’s usually difficult to comment on art without reproducing a bit of it. Fair use provisions could be worked out, e.g. profit-sharing in proportion to screen time, etc.

  24. and maybe mr. mackie needs to get a new project–sounds like he doesn’t have enough art-making to keep him busy these days. i kind of ditto the cry-baby statement in these comments. wouldn’t you think an artist would be flattered to have photographic evidence of their public art projects being interacted with by the public who paid for the project?

  25. I feel really bad for this Hipple fellow. This could not have been an easy two years (since that greedy asshole sued him)