Following settled lawsuit, creator of Broadway Steps responds

We asked the creator of Capitol Hill’s most visible public art to comment on his decision to settle the lawsuit he brought against photographer Mike Hipple for violating his copyright on the Broadway Dance Steps. Here’s a message we received via e-mail from artist Jack Mackie. “I do not want my work to be part of a coffee company’s ad campaign, Mackie writes. “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.” His entire e-mail — including an image he included illustrating one of his points — is below.

We wish Mr. Hipple would have reached his understanding earlier.  At the outset he received dubious counsel on copyright from uninformed parties.  They then helped him dig an unfortunate hole.  We’re happy he has decided to stop digging.


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.  They 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, 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.  It was with glee that I took the news of Tom Petty sending cease and desist orders to Michelle Bachmann for appropriating his work without his permission.  

It was stated that my Dance Steps are merely “instructional,” that Mr. Hipple’s photograph “depicts dancing” and the Dance Steps in the photograph are incidental and unnecessary.  In the attached picture you see Mr. Hipple’s photograph juxtaposed to his very posed model without the Steps.  Are the Steps vital to his photograph depicting dancing or are they incidental, unnecessary?  You decide.

27 thoughts on “Following settled lawsuit, creator of Broadway Steps responds

  1. I love our Hill and the art and so happy to see true human people trying to stand up for what their art is meant to be; not commerical but for everyone. My walk with my grandaughter over the steps and on into Cal Anderson has added so much fun and joy to our walk. Thank You. It is art to us not a commerical.

  2. how DARE you complain that somebody tried to sell a commercial photo of your “art” when you didn’t copyright it until WELL after the period of time had pass where it became public domain under FEDERAL law and illustrate your point on this board using a STOLEN and OBVIOUSLY PHOTOSHOPPED picture?

    You fucking waste of skin, The City needs to pry that shit out of the sidewalk an dump it on your doorstep.

  3. Why does it matter when he copyrighted it? If it’s his to copyright (and it seems it is), it makes no difference whether he did it right away, or later. Obviously, he didn’t do it before because he never expected that he’d need to. That still doesn’t make it any less his. If it had already passed into the public domain, why did they grant him the copyright?

  4. Under the law, a copyright exists from the moment the work is created. The act of ‘copyrighting’ is registering the work with the U.S. Copyright Office to create an official record of when the work was created, but the legal ownership was always already there.

    As for public domain, “In 1998 the Copyright Term Extension Act further extended copyright protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978.” Given that he emailed CHS, I’m pretty sure Jack Mackie is still alive, and therefore his works are not public domain.

  5. I don’t agree with the tone of the original post, but I do agree with the end result. Time for them to come off the sidewalks. Mackie can then do as he wishes with the steps.

  6. I thought this was settled? Why did this ‘artist’ find it necessary to state his case against the vicious photo taker again. The tone of his release is sour and reeks of a bitter soul. I read what the other half of this wrote and it was conciliatory and polite. This ‘artist’ comes across as a bitter blowhard who thinks his creation is much more important than it really is. Sure there nice, though hardly breath taking or profound in any way. Boil it down and it’s just a few brass footprints stuck in the concrete of a city sidewalk. I admit I am confused about what the big deal was. Does this mean Hammering Man can’t be on a post card? Does it mean an apartment building that sits near the Jimi Hendrix statue can’t use it in their advertising? I don’t know the answers to those questions. The ‘artist’ did answer one question for me though. He undoubtedly comes across as a self important prick who adds words like ‘bankster’ into a copyright debate like his art is a shot at the ‘man’, then he uses the actual ‘system’ to move his case forward. I wish the other half had the money and patience to take this to trial. Dear ‘artist’….you are the perfect Seattlite. Put on your beret, sit in a coffee house, and bang away on the keyboard. Every once and awhile look up as if you are in deep thought. If someone makes eye contact with you either give them a look of disdain or quickly shift your gaze down, I would say most likely down. Wander back to your apartment that smells of mildew and bad decisions. Bask in the glory of your copyright victory. Secure in the fact that you stuck it to the man. Oh yeah, and don’t forget, if you want to cash the settlement check without the ‘banksters’ you can use one of the many check cashing facilities provided on our glorious hill. Many are still owned by banks though…crap….well, I’ll just use a bank this one time, after all, I actually need one now, so it’s different.

  7. I agree with the above post’s title “Mackie is full of shit”

    The man made those brass footprints based on someone ELSE’S photo he saw. That means he really doesn’t own any creativity there anyway. He’s some guy with a big ego and a lawyer or two in his pocket who thinks it’s funny to push other folks around.

    I kind of wish they would just pry the damn things up too. Thanks to the self-important prick who managed to get a copyright on them, they’re completely ruined for me anyway. Now they’re nothing more than a spot of brass on the sidewalk that gets slick as hell in the rain.

  8. Somebody from City of Seattle screwed up on this one. They paid for this public art. They could’ve and should’ve had the artist assign away the rights to City of Seattle as “work for hire”, and none of this would’ve been an issue. People who do work for hire generally don’t get to retain rights to it. Basically, Seattle paid for it and didn’t get OUR full money’s worth.

  9. As a photographer myself, I can certainly see where Mackie is coming from. However, when you place art in public and it becomes part of a photograph used for ANY purpose, you just need to deal with it. It’s now in the public domain. Furthermore, the fact that this “art” is part of the sidewalk in front of a new building certainly would have no bearing whatsoever on my decision to move there. As for all this talk about copyright…I wonder if Mackie received permission from the creators of the dances he used as subject for his little sidewalk art project? Those very dance steps, NOT created by Mackie, are the basis of his entire project. Does this mean your art is a TOTAL ripoff? Yes…I believe it does. Do the city of Seattle and her residents a favor and remove it. Move it elsewhere like in Mackie’s basement. The world will continue to revolve on it’s axis and the seasons will continue to change. We just won’t have to smell the bullshit in the air anymore. And I, for one, would be just fine with that. From one artist to another…be more careful about where you choose to place your “art.” And get permission before you start to sue for permission…

  10. If I understand my copyright law correctly (ie. I’ve casually read up in this area being an amateur photog, but I Am Not A Lawyer etc…), all creative content is automatically copyright the moment it is produced; and the copyright exists at least for the duration of the life of the copyright holder.

    *Registration* of copyright is a separate issue, and can help protect a work (in that it provides some sort of proof of authorship), or enforce a claim, but is not necessary in order for the work to be copyright.

    This artwork would only end up in the public domain if the author specifically relinquished their copyright; or would be added to public domain automatically some set number of years after the author dies. (…and that set number of years seems to keeps being extended, mostly to protect Micky Mouse and friends from lapsing.)

    As for the illustrations above; given that they are used here to illustrate a story, on a news related site, and that they are reproduced as lower quality crops rather than high quality copies, they likely fall under the category of fair use.

  11. All he’s doing is protecting his work from commercial use, nothing wrong with that, if he doesn’t protect all intrusions on his copyright it becomes harder to defend against really bad uses, like a Chase or maseratti commercial. Then we’ll have anarchists hitting them with pick axes and spraypaint.

  12. > Does this mean Hammering Man can’t be on a post card?

    Likely not if it’s the main focus: probably not a good idea to *sell* “Hammering Man” postcards without checking in with Jonathan Borofsky first. If it’s an incidental part of a photo of the Seattle Art Museum, then less likely to be an issue. (Note that architecture is exempt from this issue; you can photography any building and sell that commercially without getting permission from the owner or architect.)

    > Does it mean an apartment building that sits near the Jimi Hendrix statue can’t use it in their advertising?

    It depends: the guy who owns that building also commissioned the statue, and depending on the original contract, the copyright might have been transferred to him, so it wouldn’t be an issue. Even if it wasn’t, it may depend on how the image is used; having the statue as incidental would likely not be an issue.

    As Jim points out below, if the city got the copyright as part of the commission, this would be a non-issue.

  13. > when you place art in public and it becomes part of a photograph used for ANY purpose, you just need to deal with it. It’s now in the public domain.

    “Public domain” has a very specific meaning in intellectual property and copyright law; placing a work in a public space has no bearing on the actual copyright ownership.

    (Not that I necessarily agree with this, but that’s how the law currently works.)

    Jim98122x hits the nail on the head here: if the city had obtained copyright as part of commissioning the work, this could all have been avoided.

  14. >I wonder if Mackie received permission from the creators of the dances he used as subject for his little sidewalk art project?

    That’s a good question: the answers may be different depending on whether you’re having a legal or moral argument, however.

    Let’s suppose that Mackie based his sculpture on illustrations from a dance catalog that was published in the 20′s. If that was the case, then copyright would have lapsed by now, the illustrations would be in the public domain, and anyone would be free to use them in any way, even as the basis for their own copyright work.

    From a creativity point of view, you can make a case that there’s little original about the dance steps and that they’re a rip-off (though there must have been some creativity or craft in turning a 2D illustration into a 3D brass sculpture); but legally, if the source material is PD to begin with, no permission needed.

    (One of the dance steps, the “Obeebo”, is an invention of Mackie’s anyhow, so at least that one is in the clear.)

  15. Glad this was a settlement and not a verdict of the court because this would’ve set a dangerous precedent. Why would any city want to improve an area and pay to install public artwork knowing that it would be a future legal minefield?

    In the US, the court system basically said that public figures (such as celebrities and politicians) have less protection because they, to put it bluntly, brought it upon themselves by becoming public. I think public artwork should be viewed similarly. Don’t want it copied, don’t make it public.

  16. @seattleslew

    “Why did this ‘artist’ find it necessary to state his case against the vicious photo taker again.”

    because @jseattle reached out to him for his comments. or did you just not comprehend the very first sentence of this post – “We asked the creator of Capitol Hill’s most visible public art to comment on his decision to settle the lawsuit he brought against photographer Mike Hipple for violating his copyright on the Broadway Dance Steps.”

    “Boil it down and it’s just a few brass footprints stuck in the concrete of a city sidewalk.”

    boil down van gogh’s “sunflowers” and it’s just pigment in an oil base on a piece of canvas. but it’s still considered a great work of art by many.

    “I admit I am confused about what the big deal was.”

    yet, here you are spouting off like you know exactly what’s going on.

  17. @zeebleoop

    because @jseattle reached out to him for his comments. or did you just not comprehend the very first sentence of this post – “We asked the creator of Capitol Hill’s most visible public art to comment on his decision to settle the lawsuit he brought against photographer Mike Hipple for violating his copyright on the Broadway Dance Steps.”

    The photographer’s statement after the settlement (to this blog) was quite conciliatory and diplomatic. Mackie’s response showed himself to be a self-righteous dick.

  18. “Why would any city want to improve an area and pay to install public artwork knowing that it would be a future legal minefield?”

    See previous posting. If the city had just required the artist to transfer the rights to the city, this wouldn’t be an issue. OTOH, it’s possible the negotiations considered that, and allowed him to retain rights in exchange for paying less. Maybe the city even chose this method so as to abdicate to the artist the responsibility of defending the copyright, so they wouldn’t have to bother. We really don’t know any of that. Somebody should ask the city.

    So all of you spewing opinions against the artist are talking about stuff you don’t know, without the benefit of knowing all the facts.

  19. When Mr. Mackie created these beautiful peices or artwork, he kept certain rights to their usage. It was a business decision and one intended to prevent abuse of his talent and his creation. I don’t see why he should not have control or say in the commercialization of his artwork. He was the creator, and for someone else to take a picture of these works, and then attempt to exploit and sell them as advertisements, without considering the artistic creativity of the designer and fabricator, seems pretty sleezy to me. Thank You Mr. Mackie for standing up and demanding respect for these beautiful, admired, and loved creations!

  20. I think seattlew’s “tone” is far more bitter than Mackie’s. Seattlew, you’ve taken the wind out of your own argument.

  21. Well said. I have no idea who all of these posters are, but it speaks volumes about their character when they get so worked up about somebody standing up for their rights. And why? A few even said it was just because of his “tone”. Oh really? When was it we went off that cliff where people no forfeit their rights because somebody doesn’t like the way they sound?

    These are truly cruel and unusual times.

  22. If the city had bought the rights to the work, it would – or should be, automatically in the public domain. There have been some cases where publiclly funded research has been pulled out (or kept out) of the public domain on the patent side.

    Intellectual “property” has gone way too far. Mackie should know that at the very least, I’m one of those people who will view the steps with a tainted eye. Definitely won’t inspire dancing when I see them.

  23. “I don’t see why he should not have control or say in the commercialization of his artwork.”

    Well, it depends on who paid for the work. If it’s public art, commissioned by the city, then it should be fair game for any use and in the public domain. Mackie may have managed to retain his copyright in the process, but the use of public money to produce it, *should* make the art everyone’s.

    Until at least 1978, that would have been the case, but there have been changes to copyright law so many times, that works have been pulled out of the public domain – which used to be something that couldn’t happen.

    You’re on shakier ground when the work is paid for with public funds. Or at least, you should be.