A Quiet Seattle Lawsuit Settlement Eludes Impact On Fair Use Laws

About a week and a half ago, and with as little fanfare as possible, the somewhat unusual case of Mackie v. Hipple (in which Jack Mackie, the artist responsible for the iconic Broadway Dance Steps -- pictured above -- sued Mike Hipple, the photographer who took pictures of people on those steps, and then sold the image rights to an unnamed stock photo website, which we're guessing is Getty Images) was settled out of court.

It is easy to see Mackie's point of view in all of this, for if the rights belong to the stock photo website, neither the artist who created or photographed the artwork would have any control over who would use the images, and to use an extreme example, that image of the couple dancing on the steps could end up being used to sell male performance enhancement pills. Mackie's reference on the Capitol Hill Seattle Blog to the spate of music artists who protest the usage of their songs by politicians (i.e. Heart and Sarah Palin, or the more recent Tom Petty and Michelle Bachmann) is possibly the most instantly relatable instance of this sort of artistic misappropriation.

But, as Techdirt points out, not only does it seem legally unsound to base the anti-commercial use of public art on the artist's preference (remembering that the key word here is 'public'), there move also erases any boundaries on where that sort of thing could end. To use another extreme example, what would happen if the estate protecting the interest of Frédéric Bartholdi, the artist who designed the Statue of Liberty, desided that using images of one of the most iconic sculptures in America should not be associated with income tax preparation services, so all of the Liberty Tax companies in the world should cease on copying the image in their ads, else face lawsuits?

It's hard to say, which is why it is sort of unfortunate that the lawsuit never went forward (though for entirely understandable reasons). It would be nice to have a ruling one way or the other on this sort of behavior. Because, as the Fair Use Law currently stands (and as Techdirt again points out), artists like Mackie, Petty, the Wilson sisters, and David Byrne don't have a legal leg to stand on when it comes to usage of their works, less so if that work is meant for the general public to use at will.

To be clear, we understand and agree with Mackie's intent here, but he doesn't really have a strong case, beyond an emotional one in this matter.

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By Jose A. in Arts & Events, Miscellaneous on July 9, 2011 4:00 PM

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Brendan McKeon

"To use another extreme example, what would happen if the estate protecting the interest of Frédéric Bartholdi..." - Bad analogy: Frédéric Bartholdi has been dead for well over 100 years, any works by him have long passed into Public Domain. Generally speaking, copyright on any work will eventually lapse, so wait long enough, and you'll be able to take as many photos of Mackie's art and do whatever you want with them. (The catch is that congress keeps extending the time required for this to happen - in order to prevent Mickey Mouse and friends from lapsing into Public Domain - so in reality, any works created after Mickey Mouse may end up with a bit more protection than those created before.)

"Because, as the Fair Use Law currently stands ... artists like Mackie, Petty, the Wilson sisters, and David Byrne don't have a legal leg to stand on when it comes to usage of their works" - Hardly; while artists typically don't get to decide who _plays or broadcasts_ their work, they still have a lot of control. You likely can't use any Heart song in an advert without their permission, nor sell a song that includes samples from a Tom Petty hit without appropriate permission.