Photog sued for shooting a street that contained publicly funded art

Ginger sez, " A Seattle man is being sued for taking photographs of public art--after he complied and destroyed his photos. The city commissioned the Dance Steps of Broadway more than 30 years ago, and used public funds to cover some costs. And the neighborhood quickly embraced it."

But the artist claims that because the publicly funded art is copyrighted by him, people who violate his copyright must face the full might of the law. The photographer took some pictures of the street that incidentally reproduced part of the sculpture, and as far as the sculptor in concerned, that's illegal.

I think the city needs to find some new art. Let them sell off the Dance Steps and use the money to commission art from a sculptor who won't demand that residents stop documenting their own streets.

Mike Hipple took photos of those steps, and he's now being sued for the photos that earned him $60.
"A large majority of the images were out of focus," Hipple said. "And you can see some of the dance steps, I think, maybe there were a handful of them (photos)."
Out of focus or not, Jack Mackie, the man who sculpted the Dance Steps of Broadway sued Hipple, claiming the photographer side-stepped his copyright.
"My agency, at that point, told me that they had complied with his wishes and had destroyed the images. There was no copies (sic) available," Hipple said.

Man sued over photos of public art on Seattle street (Thanks, Ginger Red!)

(Image: Komo News)

Previously:

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Anonymous

Ok people. VARA Visual Arts Rights Act 1990.

http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm

Even if the sculptor is a giant asshat, he is asserting his rights to not have someone make bank on the reproduction of images of his work.
Anonymous

I bet he took those dance step diagrams straight out of some else’s copyrighted book.

Just pave over them.
blueelm

This makes me want to make a large photograph of the work with the piece shopped out and display it at the nearest willing gallery.
Kid Geezer

I dare say I’ve been from Seattle longer than anonymous @ #11 and he’s full of it. Seattle is chock full of marvelous publicly funded art. He or she is an unimaginative hack.
arkizzle / Moderator

Ethan,

I was saying it as an opinion. I think public art should be the same as work-for-hire; we should own it outright.

..and enjoy it, write songs about it, take pictures of it for our own enjoyment and also to include in nice coffee-table books to sell, and make crappy tourist knockoffs and postcards and sell them too, and have businesses set up near it to leech business from the tourists who come to see it, and make it the logo for a brand of peach slices and anything anyone else wants to do, short of damaging it..

And no one should be further remunerated. Work for hire; public property.

(Separately, I live in the UK, so while this incident happened in the US, “the current law” is different here).
zio_donnie

“public art should be the same as work-for-hire; we should own it outright”

it is like that in Greece and in Italy and rightly so.

the artist is paid for his job and since he has no power over his work when he sells to a private collector i do not see why he should have further rights on property that is no longer his. if an artist wants moral or any other kind of control he should never sell anything just rent his art.

and as Arkizzle mentioned tourist photos and lame postcards are part of what state sponsored art is all about anyway.
- Ethan
  
  Arkizzie & Zio_Donnie,
  
  The point is that moral rights can be purchased. Not purchasing the moral rights gives the collector (or the commissioner of the public artwork) a discount.
  
  I suppose what Arkizzie (& Zio) are suggesting is that the public should be obligated to purchase the moral rights to public art… It seems odd though. That isn’t really helping innocent tourists (or what have you) who want to take vacation snapshots–they already are perfectly in the right to do so (provided they don’t then turn around and start selling the photos).
  
  The people who gain from forcing the moral rights to be sold are business people who want to make commercial gain using the artworks’ images. In effect, it would be forcing the public (or whoever was kind enough to pay for the public art) to subsidized whoever wanted to appropriate the artwork’s image for commercial gain.
  - zio_donnie
    
    i have never heard of the notion of “moral rights” before. what you seem to suggest is that artists have (or should have) some kind of control of their art even after the sale has taken place not based on a contract but on general principle.
    
    and i reply that this is wrong and legally unenforceable. say a musician is commissioned to compose a country’s national anthem. should he have the “moral” right to stop people that do not share his political views from singing it? of course not. should he be able to block someone from recording it and selling it? of course not. once paid with public money it is public domain.
    
    making money from public works is not immoral or illegal. it is perfectly legal to take and sell photos of the Eiffel tower, the Parthenon and of city streets all over the world. Google has photographed the whole planet for profit. nothing wrong with that.
    
    this is a case of an artist that thinks too much of himself and tries to milk a potential cash cow.
  - Antinous / Moderator
    
    Moral rights? That’s about as philosophically defensible as ‘natural law’ or ‘original sin’.
fencepost

I’d say there are a few approaches he could take:
* Settle / roll over further and spread ‘em
* Fight it based on the fact that it’s a public space
* Go for discovery: where did the original dance steps came from, was some dance manual used as a template for the installation, did the artist license that material correctly from the copyright holder, does the artist not actually own any copyright on the installation based on sources?

Basically roll over, fight it normally, or go for the jugular of “not only am I not violating his rights, he has no rights to be violated” aka SCO/IBM/Novell.
TheHikingStick

The artist has copyright on the work of art, regardless whether or not public funds paid for the work. That copyright, however, protects the artist from having copycat artists recreate his work and pass it off as their own. It has nothing to do with an image captured in a photograph. If anything, the photographer can claim copyright over the photograph that just happens to have the other artist’s sculpture as the subject of the photo.
baccaruda

Somewhere there’s an unemployed sculptor who should have been hired instead of this guy.
Felton

What a heel.
arkizzle / Moderator

“The people who gain from forcing the moral rights to be sold are business people who want to make commercial gain using the artworks’ images.”

Not everyone who sells work is shady big-business, forcing poor artists to give up their rights. I think that notion is colouring your view somewhat.

In this case we are talking about public art, which is, intrinsically, seen as part of the public landscape. As someone mentioned above, giving artists rights to certain public spaces essentially zones that space as private property (or privately controlled, at least). Why should a photographer or film crew have to pay for merely recording the very existence of a thing?

“In effect, it would be forcing the public (or whoever was kind enough to pay for the public art) to subsidized whoever wanted to appropriate the artwork’s image for commercial gain.”

I’m allowed to photograph a park, or a power-station, or a street, and sell them. All of these were paid for with public funds, so similarly we could say that society has subsidized those photos.

In reality, part of societies’ contract for funding public works is the chance to participate and use those works themselves. We all pay for lots of things we’ll never see a direct benefit from (including subsidizing certain business models, and tax breaks for certain commercial enterprises), but we also all partake in things that others will never benefit from.
Anonymous

Guess that won’t help him get his foot in the door.
phisrow

If I were a genuinely bad person, I would suggest putting copyrighted art on police uniforms, particularly riot police….
Antinous / Moderator

He’s running roughshod over basic rights. And shooting himself in the foot by doing it. At the risk of sounding arch, he needs to start toeing the line.
Anonymous

so did he try to publish the photos? How on earth can the artist have the balls to say photography, period, is a violation of his rights?

I think all of the work of that “artist” should be removed from public viewing. He can start his own museum where people have to pay to see his crap, and see what that does to his artistic exposure. What a douche.
Felton

Absolutely! The man just has no sole.
arkizzle / Moderator

“I suppose what Arkizzie (& Zio) are suggesting is that the public should be obligated to purchase the moral rights to public art..”

No. Semantics maybe, but I’m saying that, by definition, public art should be free from any moral obligation to the artist, at all. I’m saying that, to someone who is commissioned as a public artist, the understanding should be that upon payment the art will belong to the people, to do as they see fit.
sapere_aude

Nietzsche argued that each person should live his or her own life as if it were a work of art and he or she were the artist. So, if I follow that advice, can I claim that my entire life is a complex piece of performance art which ought to protected by copyright? Can I then sue anyone who takes a photo of me without my written permission (even if I’m not the primary subject of the photo, but am just one face among many in the background)? Or can I sue anyone who ever tells anyone else about something I’ve done (since I ought to have exclusive rights to my own life story)? Or could I perhaps even sue anyone who takes a photo of any place I’ve ever been, any thing I’ve ever touched, or any person I’ve ever known (since each of these people, places, and things represents a piece of the mosaic of my life)?

There have to be commonsense limits to what copyright can protect. I think one reasonable limit is that whenever you intentionally put something on public display, on public property (such as a city street or a public park), in a place where any passerby can see it, then it automatically becomes part of the public domain.
tuckels

My god! how metatarsal.

Wait a minute…
Anonymous

I’m with sapere_aude, like 1,000,000 percent. And BTW, why don’t I have a percent symbol on my keyboard?!! What the…?! Hmm…now who can I sue over it….? LOL!
wsst1000

If he didn’t want to add his work to the public space he should have kept it in his studio instead of selling it to be displayed in public. Sorry artists, once it becomes a part of the public space you don’t control it any more. To view and to use images of things in the landscape are natural and inalienable rights, no matter what current case law or legislation says. It is a right to view and to use what we see in other creations.
gollux

Betcha a little properly distributed brake fluid would permanently remove all further photography problems. Time for some new art anyway.
SafariEarth12

Hey, now I have a BoingBoing nomenclature! Way overdue. And I AM of the same opinion as sapere_aude. Also, I lived in Seattle for a while as well. Man, it’s a nice, clean city… but the unseen, underlying atmosphere (sort of it’s collective unconcious) is, kind of, well…mildly inhospitable to those not born there; and all this while they’re smiling and shaking your hand, keeping you at arms’ length. Literally & figuratively. Maybe it was just my perspective. But weird nonetheless. Love this site, guys! Always look forward to your BoingBoing Tweets!
_OM_

“Betcha a little properly distributed brake fluid would permanently remove all further photography problems.

…Or dropping a can of house paint while crossing the street.
Anonymous

I’m from Seattle, and I think the city should give up on public art entirely. It’s all just so ugly.
solstone

Looks like it’s not the first time he has done this.

http://cases.justia.com/us-court-of-appeals/F3/296/909/559842/

He sounds like a bit of an asshat, really. Not only that but his ‘art’ in this case are bronze versions of the dance steps essentially copied from dance instruction manuals. Did he pay the people who originally made such illustrations? I somehow doubt it.
Ethan

I know I’m returning to this comment thread after it being dead for a year… but in case someone stumbles across the posting and reads the thread, I’d like to have the last word :)

@zio_donnie #53, whether you have heard of moral rights or not, they exist. It isn’t something I’m making up.

@TheHikingStick #54, you’re incorrect… Copyrights of images do protect the artist from people making photographic copies & selling them.

@arkizzle #50, it isn’t semantics unless you consider the purchase of a literary work’s first publication rights to be the same as purchasing all rights to it. Look, if you go and buy a painting you can either just buy the right to own the object or you can pay more and buy the right to make & sell copies of the painting. Just buying the object is cheaper because there is commercial value in being able to sell reproductions of the work. The same thing applies to public artwork–if we’re going to force cities to purchase the moral rights and put them in the public domain (so that anyone who wants to sell images of the work can), then the artist will (& should) charge more for the work of art because she is giving up something of value. The point I was making earlier, is that forcing cities to buy the moral rights to the work does not benefit Joe Average Citizen who just wants to take a snapshot (because that is perfectly fine since it is not for commercial purposes), it is benefiting/subsidizing the person who wants to make money off of the work.
Candice

If the previous article, “Chicago’s Bean sculpture is free to photograph, at last”, linked to beneath this post is correct, “there is an exemption in copyright law for public sculpture”. So, good luck with that, Mackie.
Simon Bradshaw

Perhaps Washington State Law (and the legal systems of other US states that don’t have such provisions) should take a leaf out of the UK’s Copyright, Designs and Patents Act:

62. Representation of certain artistic works on public display

(1) This section applies toâ€”

(a) buildings, and

(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2) The copyright in such a work is not infringed byâ€”

(a) making a graphic work representing it,

(b) making a photograph or film of it, or

(c) broadcasting or including in a cable programme service a visual image of it.
- Pantograph
  
  You’ll still be arrested for being a terrorist though.
  - Simon Bradshaw
    
    Hah! Yes, but it’s useful to know this anyway to counter the assertion sometimes made by police or security guards that “if what you’re doing isn’t terrorism, then it’s at least banned by copyright.” No, it isn’t.
    
    [There's a separate issue about what happens on privately-owned spaces open to the public. There, the landowners are entitled to place restrictions that can include bans on photography or licensing requirement; London's Canary Wharf is a case in point. Casual snapshots are fine, but set up a tripod in a busy area and put an SLR on it and the security staff will soon be asking if you've got a permit. There was a big flashmob by photographers there a few months ago to protest this.]
- nexusheli
  
  Simon, unfortunately is sounds like this is more a case of bullying than actual copyright infringement. And the photog needs to find a better lawyer;
  
  Photographers in the US are allowed to photograph anything they want that’s reasonably accessible from a public vantage point. If I’m on a public street and you’re shagging in your front yard, I can photograph that. Now in that case in order for me to sell that work, I’d have to have a release to use your likeness, but only if you can prove that it’s you in the photograph.
  
  In this case, I think if the artwork is incidental to the photo it’s completely allowable, but it sounds like the photog is not a pro and it was smarter to destroy the photos than try to put up the money to fight the case. Lawyers are expensive. Now the artist is just being a prick (and I mean that in the harshest way) and bullying someone because he’s a sad example of a human being.
senorglory

How is it that with regard to 4th Amendment Search & Seizure law, a citizen’s expectation of privacy is increasingly narrow, but that for copyright privilege, owners have ever increasing exclusive rights, even in public spaces?
oasisob1

http://www.flickr.com/search/?w=all&q=dance+steps+broadway&m=text

Looks like Mister Happy Sculptor better get busy.
Anonymous

I used to live in Seattle, I remember those footprints.

Surely if a city is going to commission public art, it can do better than something you can’t even see unless you’re standing on top of it.

… mildly inhospitable to those not born there; and all this while they’re smiling and shaking your hand, keeping you at arms’ length

I agree that’s how it feels to newcomers from louder, more extroverted places, but feel like I lived there long enough to figure it out, and Seattlites treat each other the same way. They’re not being unfriendly. The local culture just says you only say a little at a time. They think telling long complicated stories is monopolizing the conversation. Oh, and you don’t hug your friends, much less people you just met. It’s just how it works there.
ddk

Time to sue Google Streetview:
http://tinyurl.com/yadljav
eliterrell

I think it’s amusing that the sculpture is presumably derived from the work of at least two other artists. A choreographer designed the dance and based that on a composer’s music. If these are in fact dances from Broadway musicals, it seems likely the the music (and dances themselves? not sure about choreography) is mostly or entirely still copyrighted.

Either that or he just made all that up.
Ethan

I agree that it sounds like a lawsuit is overkill & bullying… But I also believe that there is some merit in protecting artists rights to the images of their work.

For example, just because I buy some artist’s painting, I do not have the right to start making posters of it and selling them. Taking photographs of sculptures is analogous to making posters.

If the bronze works were truly incidental (i.e., just happened to be in the background) or the photographs were not commercial (i.e., the photographer wasn’t trying to sell them), then there wouldn’t be an issue.

Commissioning an artwork (or a performance, a translation, etc.) does not give you (much less commericial photographers who happen to pass by) the right to do whatever you want with it. For example, when I commission voice actors for an artwork, I have the right to use their recordings in very specific situations (e.g., in conjunction with the artwork). If I wanted to use it in another situation (e.g., put them on an audio CD) I would either have to have the actors’ permission (and probably pay them a bit more) or would have had to arrange it in the original commission or have bought the recordings as “works for hire.” A “work for hire” means that the commissioner owns everything about the work–and works for hire cost more.

In lieu of “works for hire” the artist retains “moral rights.” It seems odd that you can pay for an artwork (or recording or etc.) and not own everything about it… But it protects artists from having their work suddenly used in ways they do not approve. For example, Grand Rapids was so proud of their Calder sculpture that they started images of it on their stationary, garbage trucks, etc. Calder had sold them a sculpture–he hadn’t sold them a city logo.
Hans

When I lived in Seattle, I danced on his artwork with my then-girlfriend. Many fond memories of having dinner with her on Capitol Hill, then walking down to the Century Ballroom for swing dancing (passing, and dancing on, the steps along the way).

The artist sounds like he has control issues. A person shouldn’t create public artwork without believing the artwork won’t become public. Remember that copyright laws exist because they are useful to society, not because they are earned by creative work. If they cease to function that way, the law becomes nothing more than a government-granted monopoly, which is abhorrent to our social goals.

In archaeology, we often use the term “cultural patrimony” to describe a right of groups to enjoy identifiable cultural objects, regardless of individual ownership (or transfer thereof). Thus just because an ethnographer paid someone for a Zuni mask, say, does not mean it is now owned by the Smithsonian, who can keep it/display it, etc. Regardless of who de jure owned, made, or kept the object, it is part of a cultural heritage of an entire people which can not be sold without community involvement and discussion.

I don’t think there is yet a similar legal concept in copyright law, but perhaps there should be. When a work becomes iconic for a place or group of people, the individual who is the de jure owner or creator loses some ability to make decisions unilaterally on the disposition or use of the work. We recognize takings of real property for the public interest (eminent domain), so why not intellectual property. In fact, a stronger case could be made since intellectual property exists (in the US at least) precisely to “promote the Progress of Science and useful Arts.”

In the mean time I will hold on to my memories (still 100% copyright free) of the dancing steps, even if the artist has gone a bit off.

(I will just add I don’t think the Dancing Steps are on par with Zuni masks in terms of cultural significance. The former is a recognizable icon, while the latter is a sacred object. The point, however is still made.)
caesar female

I am critical of Jack Mackie’s suit; there’s a bit more to the story than that which can be read here. A little investigation reveals that there is no problem with non-commercial photos of the work. Mackie’s complaint is that photos of the work should not be used for commercial purposes-Mike Hipple’s photos were licensed for stock photo use. However, the fact that Hipple promptly removed the photos from the stock site should have been sufficient remedy.
Anonymous

Am I the only one who thinks lawyers would be put to far better use as an alternative fuel source? They are really getting out of hand!
arielariel

If I understand correctly, isn’t the issue that he got paid for the photos, not that he took them?

Not to be a total mule, but I imagine they’d have to let noncommercial use slide. I believe in protecting artists’ rights, but this guy sounds a little too pumped about being a heel.
userw014

While I respect the idea that if someone else makes money off of something you made, you ought to be able to get a fair cut, I think that allowing artists of public installations of art to enforce that right through the legal system is bad public policy.

In effect, his suit is claiming that – in a certain sense – any portion of the public space that can discern “Dancing Steps” is HIS PRIVATE SPACE.

And that is WRONG.

It’s installed ON and AS PART of a PUBLIC THOROUGHFARE. In effect, it’s public domain. When the City decides to replace that sidewalk, he’s welcome to collect the jack-hammered concrete and return the art to a private space, but for now, it’s PUBLIC.

I Googled him to see if I could find a list of his work – if any were in public spaces in Ann Arbor, I would campaign to have them removed. I did discover that he’s a musician – and so his sense of proper copyright must have been polluted by the crimes of the RIAA over the years.
daneyul

Non-commercial photos would be fine. It’s that he was selling them commercially that is the issue.

While the fact that the art was incidental to the photographs, and in any case was promptly destroyed, yes, this case doesn’t seem to have merit. The artist is an asshat.

But…what if the photographer had photographed only the artwork itself, zoomed in, and then sold it? Would the artist then be less of an asshat for suing?

OK, how ’bout if the photographer took 5 steps back from the artwork and sold that picture? 10 feet? When does this kind of thing become “incidental” to the photograph?

Hmmm….
- arkizzle / Moderator
  
  I think the fact that the sculpture is in public space, and was commissioned as such, means it shouldn’t matter how focussed the photos were. As userw014 says, the works are part of the public thoroughfare.
  - Ethan
    
    I think the fact that the sculpture is in public space, and was commissioned as such, means it shouldn’t matter how focussed the photos were. As userw014 says, the works are part of the public thorughfare.
    
    Arkizzle, it’s a bit unclear your wording, but are you saying that meaning you think the law should change or are you thinking that’s how the law is?
    
    If the former, I disagree… It’s important for artists to retain some moral rights to their art. My comment above goes that into some detail about that.
    
    If the latter (i.e., that you believe that this current law), I’m afraid that’s just not the fact.
MadRat

Too bad the artist isn’t claiming that not allowing photographs of his work due to copyright is part of the art. “If you take its picture you’ll steal its soul.” At least then he’d provide some amusement as a pretentious, snobby artist. I wonder, what would happen if you opened a booth on the corner selling paper and charcoal pencils so people could take rubbings of the art? That’s not a violation of copyright laws (unless ACTA becomes law) but it would piss off the right people.
Anonymous

Nothing a little graffiti wouldn’t fix.
Anonymous

Wow. Biggest D-bag ever.
Baldhead

I feel that the artist is right but taking things out of proportion. He should get a cut of that $60. Judge should order the defendant to pull a fiver out of his wallet then order the sculptor to shut it.
blueelm

If the city bought the work the artist doesn’t own it anyway. Consider art purchased by a collector and then loaned to a museum. The rights to show that work in a museum brochure or book, for instance, rest with the owner of the work. No one calls the artist at this point as they’re irrelevant unless of course they personally loaned the work to the museum and no one else has bought it. So my question is if the artist was paid and the city owns the work as a public piece of art, how does this artist imagine he has any ownership of the work? Did the artist donate or sell the work to the city or not? Because if so it is the city’s property anyway.
Anonymous

If the public paid for the art then it is public property.

If it is private art placed there by the artist then the artist needs to pay rent and pay for the upkeep.