According to Hipple's blog and conversations I had with Hipple and Mackie yesterday, Hipple submitted the photo to a stock agency around 1999/2000. When Mackie heard about the photo being sold, he got his lawyer to send Hipple a letter asking for the photo to be removed. According to Hipple, that happened within two days of when he received the letter.
But then, Hipple says, Mackie filed suit against Hipple a year later—even though the photograph no longer exists. Hipple says neither he nor the agency even have a copy of it anymore.
Why did Mackie file suit, then? Mackie declined to talk about specifics of the case, but said he has to defend the copyright on the work because this happens all the time—and he has felt it has become egregious before. A few years ago Seattle Symphony used a picture of the steps on their brochures and posters and programs to promote their Broadway showtunes pop series. In each case of copyright, Mackie says, he has to prove that he's protected the copyright before—otherwise his laxity in small cases will count against him in more egregious cases. (In the case against the Seattle Symphony, Mackie won the point of his copyright but not damages from the money made from its use by the Symphony. News story here.) Hipple says he made "a grand total of $60" on sales of the photograph.
Both Hipple and Mackie said repeatedly that they hate dealing with this.
Barbara Luecke, longtime Seattle public art administrator, explains some of the complications:
Copyright is an interesting topic, particularly in the age of the internet, the information glut and the accompanying free usage debates.
Jack's enforcement of the copyright he holds on the Broadway "Dance Steps" is nationally well-established, with multiple actions and settlements.
The line with Jack, and with most artists who actively enforce their copyright, is with commercial use of the artist's artwork. People are free to take pictures of themselves dancing fon the steps for their scrapbooks and Christmas cards. If someone, like a stock photographer or advertising agency, is making money off the artwork they need to have some kind of license agreement, even if that amounts to permission with no compensation.
Ironically, people in the stock photography business are usually avid enforcers of people not using their photographs without compensation or permission.
Fair use would apply if this was a photograph for a newspaper or a travel story about Capitol Hill. "The Fremont Troll" artists are also nationally known for enforcing their copyright, and helping set precedent for any artist who also wants to control how the image of their artwork is used into the future, especially in selling a product they don't want to be associated with.
In one of the Troll artists' claims, People magazine took a picture of a local fantasy author in front of the Troll, which resulted in a settlement with the magazine. The image didn't constitute Fair Use because People was using the Troll as a prop rather than a location. The magazine recognized that, and settled quickly for a small amount.
As I understand it, in order for copyright cases to be enforceable artists, or whoever holds a copyright, have to be diligent about enforcing all cases they come across. That means not letting small uses slide that might seem insignificant to a casual observer.
Like most agencies that commissions public art work, Sound Transit's artist contracts include clear language that states the artists retain ownership of their copyright.
I'm waiting to hear back from some legal minds on the matter. What a mess.