Luecke is correct in stating that an artist must enforce her copyright, in order to stave off a later infringer's argument that she has waived or abandoned it. Personally, I question whether the law requires the degree of protection sought here - a lawsuit whose filing fee itself is 5 times the actual profits lost. Certainly Mackie may seek statutory damages and his attorneys fees and costs in the noted case, but the risks and time expense of litigation would lead me to advise against it, once the infringing work (the photo) had been removed from any stock photo banks.
Seems to me that public art is just that - public. If you're an artist who gets an opportunity for a major, prominent public work - bully for you! You get tons of exposure and a long-term legacy in a public place. Now give that work to the public domain, and don't expect to make money off it. Count it as a freebie that will get your name out there.
A simple solution would be for all public art to be declared the intellectual property of the public, with all rights transferred from the artist at the time of unveiling. Or better yet, clarify the rights of photographers to take pictures of anything they want to, as long as they are in a public place. We have this right already, but it gets murky when commercial use comes into the picture.
I think this is an excellent example of why we should go back to a twelve and a half year copyright window.
I'm not a lawyer, but I do deal with copyright issues occasionally in my work.

Yes, the artist must diligently enforce their copyright, or loose it. You can't arbitrarily choose to enforce it against one violation and ignore it against another.

However, I don't think enforcing your copyright requires you to sue every violator, even when it makes no financial sense. Copyright law is federal, not state. So you have to sue in federal court for a copyright violation. You cannot make a copyright claim in small claims court or state court. So it is a costly and time consuming endeavor.

The artist demanded the photo be taken down. The photographer complied. They could settle for a relatively small monetary compensation if it makes the artist feel better. That should be sufficient proof that the artist diligently defended their copyright. Anything more than that, and the only people making any money will be the attorneys.
Where is the line drawn about what is art and not in public settings? For instance, just to play devil's advocate, the design of the Space Needle is surely copyrighted, and architecture is most certainly an art form, so why can people publish pictures of buildings without giving due credit to the owners of the buildings but not of other public art?
@6 : I did some research into selling some of my photos on microstock sites and I was told that I couldn't sell images of instantly recognizable buildings like the Empire State Building or the Space Needle. You may actually need a building release form for such a thing.
@6, architectural works themselves (as opposed to architectural plans/blueprints) have only limited, and very recent, copyright protection. In the U.S., that protection extends only to architectural works substantially constructed after 1990. The Space Needle Corporation loves to claim copyright protection, but its claims are dubious.
If you can see it from a public place, it should not be copywritable, period.
If someone creates something while working for another organization of some sort (like a programmer for Microsoft, or Conan and NBC), that content is the property of the larger organization, correct?

Since Mackie created his art with public money, why isn't it considered public property?
I would agree: If public money was used to pay for these works, they ought to be in the pubic domain. You can't have your cake and eat it, too: Sell your work to a public entity but still claim ownership of the copyright. I think copyright law needs to be change on this one.
Copyright law doesn't need to be changed. Contracts for public art need to be changed.

If the city (or whatever entity) that purchases the artwork also buys the copyright along with the artwork, this problem would not exist. Why they don't is a mystery to me.
I agree with the others on here that if you sell your artwork to the city to be in a public space, then that artwork should enter the public domain. People will reference it in photographs, other artwork, as long as that art is a constant presence in peoples' everyday lives. I had no idea that the Space Needle was included in this as well. Does this mean I have to photoshop it out of any photos I take of Seattle if I plan to sell them later on?
Can I sue Mackie for egregious douchebaggery? What a king sized A-hole.
Space Needle is not owned by the City, and it never was.

But public art does belong to the city - from the steps on Broadway to many of the manhole covers. Considering the money we at taxpayers pay for what is too many times godawful public art, it definitely should be in the public domain.

Are the author and publisher of the book the artist obviously copied the step patterns from entitled to anything here? Protecting your art is one thing, but there's no further income ever to be made from this, it's a silly suit—let it go.

The flaw in your argument, and a point specifically addressed in Ms Lueke's comments on the matter, is that the public DOES have fair use rights to the work in question. In this instance, however, the work was photographed by a private individual who sought to sell the image for a profit, and that is grounds for suit under current copyright law.

And again, to reiterate, the artist HAS to defend the copyright, otherwise they risk losing it altogether.

Finally, your notion that artists should just give away their work; for the exposure, for the legacy, or whatever, is just plain stupid.

Unless of course, you wouldn't mind publishing your address, so someone can come over and take lots of pictures of your house, your car, or your family and sell them for whatever they can make off it - AND for whatever use the purchaser decides to put them to, because, hey, you-all are standing right out there in public view, so, by your logic, you should be grateful for the free exposure, right?
@2 - I get your point and that's fine - but why then should other people be able to make money off your artwork?

I'm surprised at how anti-artist copyright some of the comments are. I do think the legal hoops Mackie is made to jump through (and HIpple is made to endure) are a ridiculous burden and an overhaul is needed, but it's not Mackie's fault that he has to take these steps to prove that he has consistently defended his copyright.
You-all have some very strange, not to mention disturbing, notion about how art gets made.

Fnarf, If I can see the artwork through the window of a gallery space, then it shouldn't be copyrightable? Is that REALLY what you're saying? Because, that's just ridiculous.

And for the rest of you: just because an artist sells their work, whether to a private individual or to a public entity, they still maintain the copyright to the work itself. That's why they're called "intellectual property rights" and the reason for which copyright law exists in the first place: to protect the creator from unauthorized use or reproduction of their work. For example, if you buy a new car, your ownership of it does NOT give you the right to manufacture and sell a duplicate of it, even if you had the technical ability to do so. Conversely, just because a copyrighted work is purchased by a public entity with taxpayer dollars, does not mean the creator must relinquish their legal rights in exchange; in point of fact, as owner of the work, the government agency would instead find itself in the position of enforcing the artist's copyright to some extent, particularly if the agency itself has already entered into an agreement with the artist for its own reuse of the work (which is frequently the case - cit ref the recent brough-ha-ha when Olympic Sculpture Park first opened).

And it's not just about money here, people. Most artists strive to develop a unique and distinctive style in their work. Copyright, just as the term implies, provides an enforcement mechanism to protect the creator and their work from being devalued by attempts to create shoddy imitations of their product.

No artist (at least no smart one) would EVER relinquish the copyright to their works, regardless of the manner of disposition, and no purchaser (except perhaps the most unscrupulous) would ever consider willfully violating that copyright.
Cities have copyrighted their skyline. No joke.
You can read more about this at According to this post, Mackie already "protected" his copyright by settling for a hefty sum from the stock agency's insurance company. Now, he's going after a photographer who made $60 on a picture of a woman (that happened to include a few of Mackie's dance steps) he took 12 years ago?! Give me a break!
@19 Great and I do mean great post on the subject. This topic has come up a lot over the years and a lot of ink/words have been spilled about it, and never as well-reasoned as what you just threw down.
@19, I'm going to echo some of your thoughts....

@9, that would render the Copyright Act, as it relates to all visual works, illusory and donkey-kick a hornets nest of privacy concerns. Actually, that is so broad a statement that it would affect non-visual works, too: If someone stood on a public sidewalk outside a karaoke bar and videotaped lyrics as they scrolled across a teleprompter (a licensed use of the lyrics), the taper could then reproduce those lyrics without infringing the composer's rights because they "can see it from a public place." Perhaps you had some qualifications in mind?

I'm also not on board with this "since a municipality commissioned it, it is in the public domain" argument (@11 and others). That argument confuses the issues of protectability and the identity of a copyright owner. A city will own the copyright of commissioned public art if that's the way the deal was negotiated, as @12 correctly points out. Apart from the duration of protection, the identity of a copyright owner has no effect on whether the work is in the public domain (i.e., not protectable).

Another consideration generally with public art is VARA. Those rights cannot be transferred, though they can be waived. In California, we also have CAPA (which may be pre-empted, but that's another conversation). It is beyond idiotic not to recognize this when commissioning or purchasing art. I don't know if Washington has a similar statute.
Too often we hear only one side of the issue---that of infringers claiming principles of intellectual commons, and the like, in defense of appropriation.

The larger philosophical issues include the harm in monetizing too much of what we can perceive, say in walking down a city street, to the point that useful re-inturpretation is harmed. Facilitating the circulation of interuptive images of others works through allowing monetary gain from them, certainly has something to benefit society. But there is a balance.

Now I'm curious of the impact on photos published on Flickr and the like. I suppose the EULA's hardly anyone ever reads registering at such places, spell out the liability questions pretty clearly.

And again, to reiterate, the artist HAS to defend the copyright, otherwise they risk losing it altogether.

You (and a number of other commenters) are thinking of trademark, not copyright. While it might be true that a past history of not pursuing infringers might factor into the damages awarded in a later case, you can't lose your copyright by failing to defend it. (This is #5 in a "top-10 myths about copyright" FAQ that's been in circulation for quite a while.)
Um, the dance steps are art? Really? That just makes me want to sit in a corner somewhere and drink myself to death.
@19 and @22, I should have said that anything visible from a public place THAT IS PHOTOGRAPHED should not be protected by copyright WITH REGARD TO THE PHOTO.

Yes, a photograph of an art work through the window of a gallery should be completely free of obligation to the original artwork maker. Ditto buildings, any buildings. A photograph of karaoke lyrics (oh, really?) should be reproduceable under any circumstances.

A photograph is not a duplication. Photographing karaoke lyrics is hardly the same as using them in a song.

Copyright in general doesn't protect artists, it protects the salaries of lawyers and the incomes of corporations. See: RIAA and ASCAP, who ceaselessly fuck over the artists they claim to be protecting by their actions. Fuck them. Fuck this guy who made these dance steps. If he is harmed, that's a positive social good, as far as I'm concerned.
Presuming that this public art is owned by the public, then I don't see an infringement. If it isn't owned by the public, it should be. I don't think we the public should provide a publicly owned and maintained venue (in this case a city sidewalk) to a litigious artist, who frankly seems like a doof.
I don't see how not defending your copyright in one instance prevents you from defending it in another. Why should that matter? (What is the precedent?)
From my comment from the Capitol Hill Blog:

I think it's unfair the way Mackie is being characterized here. An artist seeks to defend his copyright and goes for damages?

I think it's totally legitimate to pursue a licensing fee for infringement of a copyright.

It's exceptionally difficult for an artist to make a living. If someone uses an image of your work, you're entitled to a licensing fee, and if you ignore the infringement for too long you'll expire the statute of limitations, so it's important to pursue all infringements. Today's harmless photo can turn into tomorrow's painful Nike add campaign that you're not entitled to a dime for.

In the past, when I'm pursuing copyright infringement for a work for Handsome Murals, of which I'm co-proprietor, then I simply send letters requesting the licensing fee, which I try to keep reasonable. But if that fee is not paid, we're forced to pursue it in court to maintain our legal standing and fight for all artists right to not have their work published without permission. We need to stand together and maintain basic payment and copyright standards, otherwise, people will continue to take advantage of the average artists by using their work without permission or payment.

Ultimately, it's irrelevant who pays for the work, the city, an individual: doesn't matter; the copyright is the artists unless otherwise specified in writing and agreed upon by all invested parties. Trust me when I say that Jackie Mackie is not Standard Oil. He's just a dude trying to make a living in a world that doesn't respect art as being a legitimate career, and here is the Capitol Hill Blog feeding into that. Honestly, CSH Blog, I think you should be a little more thoughtful in your condemnation of Mr. Mackie.

Let's build a real arts economy in Seattle. Let's respect people's choice to protect their work. Should Sony Music and Virgin be the only ones benefiting from modern copyright law? I don't think so.

Scratchmaster Joe
I have to strongly disagree with you, Joe, regarding Jack Mackie. The guy asked the photographer to remove the photo from the stock agency two years ago. They complied immediately and the picture was even destroyed. Then Mackie goes after the stock agency and gets a hefty settlement from their insurance company. But, apparently, that wasn't enough for him. He has to go after the fellow artist, the photographer, who is also just trying to make a living, and who complied immediately to Mackie's request and even offered to settle. But, Mackie feels the need to suck him dry as well - even though it has been stated that the photographer made about $60 total off the photo in question. RIDICULOUS!!!
Anyone who says that copyrights must be enforced or lost has consulted with a terrible, horrible, no good, very bad intellectual property attorney.

*Trademarks* have to be enforced or they are lost, because if you stop enforcing them, they stop being trademarks. Copyrights and patents don't need to be policed by their holders in order to remain protected (though you can, in fact-specific cases, be estopped from asserting your IP rights against a specific person if they can convince a judge that your non-action was in fact consent to their use).
@ 26 Well, now I know I am not the only one here who had those thoughts.
I don't deny that Mr. Mackie should defend his copyright, but to paint himself as an innocent victim that has to sue Mr. Hipple even though he doesn't want to, is disingenuous. Mr. Mackie did indeed defend his copyright when he wrote the initial letter. When the photo agency removed the image AND paid him a settlement, he did all he needed to do to prove he was actively defending his copyright. To come back a whole year later to sue Mr. Hipple was completely unnecessary from a copyright defense standpoint. At this point it can only be seen as a money making proposition for Mr. Mackie. I find this distasteful and repugnant.
In the US Copyright is not a natural right; it is a government granted monopoly. The justification in the US Constitution reads:

"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."

Ask yourself: does it promote the "Science and useful Arts" to have a sculptor sue a photographer who took a transformative picture of the sculptor's work? It doesn't seem likely to result in more art or science -- just lots of waste. The photograph does not decrease the value of the sculpture -- if anything, by publicizing it, it increases the sculpture's value, which should (in a sane world) encourage tourism to Seattle and thus more art commissions to artists able to produce similarly interesting art.

But instead of that world, thanks to the RIAA and its ilk, we have artists who hope not to continue to produce art -- instead, they hope to find the one magical piece of art which will make them rich for the rest of their lives thanks to the government sponsored monopoly. That's not a system which is designed to promote progress.

Copyright terms should be finite and short. Life of author + 75 years makes it welfare for artists and their descendants (and I say that as a liberal who thinks there are appropriate uses for welfare). 125 years for works of hire discourage corporations from creating new works -- why bother when you can continue to bilk the old creation?
The logic in some of these posts is very interesting. I don't think paid for by public funding equals the right to use any way we please. Im sure if I were to break into a school, throw a party, and charge a cover, the excuse "Well my tax dollars paid for it so therefore I should be able to use it anyway I want" probably wouldn't fly.

The irony of this story is that the infringement was committed by a commercial photographer, does he not consider himself to be an artist too? What if I found one of his photographs in a public place, took my own photo and tried to resell it? What if the work were a commission by a city? I think it was probably was an oversight by the photographer but maybe a little due diligence next time?

If it was an honest mistake, take the photo down and send the artist a check for the money you made from it.

TCorey: The photo was taken down...TWO YEARS AGO, immediately when requested! And the photographer tried to settle with Mackie to no avail.

The whole point is that this is just an absolutely ridiculous and petty lawsuit with no real merit; especially considering that Mackie already got a chunk of change from the stock agency.
Wow. At least 10% of this thread consists of people repeating the myth that copyright must be defended. I don't think I've seen a better demonstration of why one should never, ever solicit legal advice on an Internet forum.
Please! Just take up the sidewalk slab with the art embedded in it and put it in a crate in a city warehouse. The artist's intellectual property will be safe and we will be relieved of the tediousness of reading about this fight. I don't really find the work thought provoking, entertaining or technically superior.
It took me 5 second to find a Flickr image of this installation -- and the photographer in this case claims copyright of the image of Mr. Mackie's work, as well.

A link:…
It took me 5 second to find a Flickr image of this installation -- and the photographer in this case claims copyright of the image of Mr. Mackie's work, as well.

A link:…
More on the story from PDN -…
Mackie is just being a greedy prick. He doesn't have to hold Hipple up for the ridiculous amount that is being asked. He could be reasonable toward a fellow artist. Hipple and the agency acted immediately and respectfully. Mackie collected from the insurance of the Stock Agency. Just a greedy prick using a lame excuse to rob someone. I agree with a fellow commenter that this section of sidewalk should be ripped up and put in storage to never see the light of day again. And not let Mackie buy it back. I am all for copyrights and artist rights but to go after this guy for $60k is hateful and greedy. Hopefully a judge and kharma will drop hard on Mackie.
if it were me -- i'd sue mackie for infringement - what the hell was his crappy artwork doing in the photo anyway?

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