Broadway Dance Steps lawsuit settled — ‘not worth continuing to fight’

The legal battle between a photographer and the creator of some of Capitol Hill most popular, well known and notorious public art is over. In a statement posted to his blog and Facebook account, photographer Mike Hipple announced that the case brought against him by artist Jack Mackie has been settled only days before it was scheduled to go to a jury trial in Federal court.



chacha, originally uploaded by zenobia_joy.

 

I am writing to let you know that I have settled Jack Mackie’s copyright claim against me. I believe I have good defenses but have come to understand that he has good claims. I also believe now that the financial stakes are such that it is not worth continuing to fight.

I understand Jack Mackie’s ardent desire to protect his copyright in Dance Steps on Broadway. I, too, want to protect my own photography copyrights. Mr. Mackie’s Dance Steps is a Seattle icon and a well known work. I understand why he is so protective. I did not intend to attack his copyright when I took my photo, and I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright.

I did not intend, in defending myself in the lawsuit, to attack Mr. Mackie personally. I intend to let this matter go and urge my supporters to do the same.

Specific terms of the settlement were not announced.

Mackie’s case sought payment of his legal fees and monetary damages that would have been determined by the jury. In what would have been a peculiar setting for a Federal trial, the jury would have also possibly made a field trip to Capitol Hill. Mackie’s lawyers did not oppose a request from Hipple’s legal team that the jury be taken to the site of the Dance Steps on Broadway to see the artwork in person.

News of the settlement was sent to CHS without comment from Mackie’s e-mail account. We have asked him for his thoughts on the settlement and will update if we hear back.

The settlement guarantees the case won’t provide any further precedent for future fair use and copyright disputes involving public art. In the meantime, the Steps remain an iconic element of the Broadway streetscape and are regularly featured in photography and video created in the area. Given the outcome of this two-year legal battle, photographers probably won’t stop shooting pictures. They’ll just want to be careful with what they do with them.

25 thoughts on “Broadway Dance Steps lawsuit settled — ‘not worth continuing to fight’

  1. and his fucking dance steps should be jack hammered up and shoved directly up his greedy ASS! They were a COMMISSIONED piece of art by the City, and weren’t even copyrighted until this whole bullshit started. Mackie is a copyright troll no better than Paul Allen.

  2. Ehh…. I mean I understand the rage. He’s a jerk. But ripping out the steps and redoing the sidewalk would just cost us more money. I say leave them there, make the tourists happy, while the locals know the real story and we go passive-aggressively leave anonymous hate letters in his mailbox, like true Seattleites.

  3. mr. mackie spends the rest of his career scouring the interwebs for photographs of his “art” taken by the gazillions of tourists to seattle and sues every. single. one. of them. the nerve of people taking pictures of public art!

  4. oh c’mon, people. those steps are awesome. I remember dancing around on them when I was a kid 30 years ago. nobody’s going to rip them up so give it a break.

  5. From what I can tell he sued because Mike Hipple was selling a photo of the steps (nice pic btw Mike). The move to prevent him from selling a photo of art, by the artist, is more than understandable, when it is a peice of public art, already paid for, then it becomes less so however.

  6. Let’s all go and take a photo of the steps then ‘sell’ them for a penny at the upcoming Seattle bite! How many thousands can Jack Mackie take to court? ;)

  7. If Mackie retained the copyright to his publicly-commissioned work (which appears to be the case, otherwise he wouldn’t have had any legal recourse to sue in the first place) then he has every right to sue for infringement; in fact, under those circumstances he’d be remiss if he DIDN’T sue, because then the argument could be made that he insufficiently protected his copyright, in which case he could lose it altogether. That’s the law, people. Whinging about the guy being a jerk for protecting what rightfully belongs to him is just so, well, juvenile.

  8. I was thinking…..just about everything you can photograph is likely to be owned by someone else. At what point does your photograph become art and unclaimable by the artist or owner? You can find one hundred and one photo’s for sale of the space needle but how many of these sales pay a commission to the city of Seattle or whoever it is that owns the space needle? If you look at the above photo as compared to the actual physical brass footprints, they really are two different things.

    Mike you should have just hired a good lawyer and set a precedent.

  9. I don’t know if Mackie is a jerk or not, but it’s untrue that the footsteps “weren’t even copyrighted until this whole bullshit started”.

    In any of the Berne Convention signatories (which is almost every country in the world, including the United States), as soon as a work is fixed in a physical medium, the author is entitled to copyright on the work and derivative works. It’s black letter law.

    The part up to debate is whether photography of a public art installation is considered fair use. I think it probably should be, but reasonable people can disagree on this point.

  10. Copyrights do not have to be defended to remain valid. You are thinking of trademarks.

    Incidentally, there are few-to-no examples of even trademarks actually becoming legally generic through lack of enforcement. You can’t sell facial tissues called Kleenex or copy machines labeled Xerox without incurring legal action from Kimberly-Clark or Xerox, respectively. Aspirin is only a generic term in the USA due to the Treaty of Versaille (yes, the one that ended WWI), not because it wasn’t enforced by Bayer AG (it’s still a trademark elsewhere.)

    So basically, you’re 100% wrong.

  11. I do like the steps, but if he’s going to be an @sshole and sue anyone who takes a picture with them inadvertently in them and posts it on the net, then they need to come out.

  12. We’re not whining about it. We want them removed. If he insists on suing people, then they need to come out.

  13. Oh, c’mon peoples. It’s very simple. Constitutional Law I. You can look at the sidewalk dance steps. You can photograph the sidewalk dance steps. But, if you seek to make a profit from photographing the sidewalk dance steps you need to have the OK from the copyright holder. This has been, is, will be the law in the US. Oy.

  14. i don’t get how this qualifies as art. the guy just copied footprints from a dance book, no doubt. he may be a skilled metals guy, but art? why should he should be able to protect it as if he created the whole idea of footprints illustrating a dance?

  15. agreed! not supporting that artist mackie, ever. and our tax dollars paid for the art – it should be public domain! i’d understand if hipple were making a huge profit off of them, but selling a picture to a stock photo site isn’t making anyone rich. once he pulled the photo it should have been done with.

  16. > but if he’s going to be an @sshole and sue anyone who takes a picture with them inadvertently in them and posts it on the net

    …except that’s not what happened here.

    The steps were a significant part of the disputed photograph, hardly ‘inadvertent’.

    Also, the photo wasn’t just posted to the net: it was submitted to a commercial stock photo agency.

    Had the photographer in this case just taken a photo of the steps and uploaded it to flickr or similar and left it at that (a many folk have done over the years), there would like be no issue here.

  17. Illustration may fall under fair use: the key point here is that this article is about the story, not the photo. The page would still be substantially the same content-wise without the photo.

    (On the other hand, the steps were a key component of the disputed photograph.)

    Also, Mackie’s main issue seemed to be that the disputed photograph was used commercially; not quite the case here (although CHS indirectly gets money from advertisements on these pages, etc.)

  18. We are pleased that Mike Hipple came to agree to our terms to settle this. It’s unfortunate that he delayed it by some 3-1/2 years since the legal issues surrounding this case have always been clear and obvious.

    Because of the questionably legal public campaign conducted against me I now must spend time clarifying the issues Mr. Hipple clouded with his ill-informed attack on me and the general myth-understanding of Copyright Law.

    I have said it before and I’ll say it again: Anyone can make photographs of any public art and do most anything they want with the photograph. Private photos are most likely not infringements. People can frame them and give them to their uncles and aunts as gifts, they can post them on their facebook pages, or they can make Valentines with them and give them away. What they can not do, and this was the basis for the lawsuit, is offer to commercially sell them, which Mr. Hipple did, at least twice.

    Artists hold copyright to their work, period. The Federal Law that states this was well vetted and argued before becoming law. This law comes with strict standards that must be met to gain copyright. I met all of these standards. My copyright is secure meaning it comes with protections and it comes with controls. Artists are the only people who get to say how images of their work will be used. I do not want my work to be part of a coffee company’s ad campaign. I do not want my work to be part of a sales pitch for condos on Broadway. I do not want my work associated with banksters… all of which I have had to deal with. I want my work to be seen as it was intended and in the setting for which it was created – Seattle’s sidewalk on Capitol Hill, Broadway. I do not want it used by whoever might think it a cool idea to appropriate the image for their current fancy. I must think that most readers here were happy to hear that Tom Petty sent a Cease & Desist Order to Michelle Bachman when she used his music without his permission and in a way to which he objected.

    Perhaps this will end the hate mail and physical threats directed at me. If anyone wishes to continue the conversation then call me, the number is listed.
    Jack Mackie

  19. Fair Use includes use to illustrate a news story in that it is educational. Educational is Fair Use. Illustrating this news story is Fair Use.
    I have given photos of my work to numerous arts agencies, cities and educational institutions across the country for educational purposes.
    And, I have given use to numerous non-profits for use – like the Northwest Kidney Foundation which used an image in their 2011 Calendar. They gave credit to the Seattle Arts Commission and me. For payment they gave me a calendar, meaning I’m obviously in it for the money.
    Jack Mackie

  20. Hi Jack,

    Thanks for your post , good to hear your take on things. I am all for protecting copyright but now I am in a quandary. Can I take a photo in a public place and send it to my stock agency now? Is the Sculpture Garden now off limits to pro photographers? Is the basis of your suit that the photographer sold it commercially AND your steps were the major portion of the image? I was of the understanding that if it is a “scenic” shot with several elements, and it was not just of the one artwork, all is OK. I sometimes shoot interiors for realtors and someone told me I have to switch out all of the artwork now – ridiculous as that may sound. If true I need to find another line of work.