Dancing with Copyright Law

A confusing Artist vs. Artist case that has been playing out in the legal system in Seattle, has been settled for an undisclosed amount of money. You can read the details of the case here and here, but the gist of it is: Seattle photographer Mike Hipple was sued by Seattle sculptor Jack Mackie for copyright infringement for a photo that Hipple took of the feet of a woman dancing on Mackie’s 1982 artwork Dancers’ Series: StepsHipple, perhaps unwittingly, posted the photo on a stock photo website. Within two days of it being posted on a commercial site Mackie sent a take-down notice to the stock photo site, and then sued the photo site and Hipple for infringement.

There is a lot of anger and confusion being bantered around about this case – most of it is related to fundamental misunderstandings of copyright protection and copyright law. An especially angry example can be found here: http://www.techdirt.com/articles/20110702/01433514945/another-fair-use-debacle-photographer-settles-bogus-copyright-threat-artist.shtml.

I’m not a lawyer (see disclaimer here), but here are my thoughts on this case:

1). Copyright is the exclusive right of the artist that created the artwork. One of the things that people don’t tell you about copyright if you are an artist – if you don’t defend your copyright in all minor cases, that can come back to haunt you if you try to defend yourself against any future case of infringement. This means, the court can take into account your past laxity with regard to your copyright – just as they can take into account your past aggressiveness in defending your copyright. Don’t hate on the artist that defends him or herself.

2). If copyright law were clear and logical the case would have gone like this. Hipple and stock photo company receive the take down notice. Photo gets taken down. Hipple says, “gee, sorry – I didn’t realize this was infringement.” Case closed. Should Makie been able to sue Hipple for $60K when Hipple made $60 total on the stock photo? Probably not, but welcome to the legal system and copyright law, where nothing is black and white and lawyers make a crap load of money off these type of cases.

3). Fair Use is confusing, and if you are thinking of using it as a defense, you should speak to a lawyer first. If you use other peoples work in your work, you should already have spoken to a lawyer. Anytime you use Fair Use and Commercial Use in the same sentence you should immediately speak to a lawyer.

4). Copyright infringement is a civil not criminal crime. Two parties disagree about whether or not something is copyright infringement, one sues the other. Unfortunately in civil law, to work out your difference of opinion with someone, the only way is to sue, go before a jury or judge, and/or settle. Guess who is the only winner here – that’s right, the lawyers. One artist suing another artist. Boy, that just doesn’t make a lot of sense. But again, copyright has nothing to do with sense. What we should all stand up and rally against are major corporations who use their high paid, high powered, in house legal teams to sue individuals who do not have the means to defend themselves. These individuals often have to settle with the major corporations, even when the individual has a very good chance at winning the legal argument. It comes down to not having the money to pay their lawyers to sustain their defense against the onslaught that these major corporation legal teams can dish out. And the loser in these cases is all of us, because all these cases weaken the original intent of copyright law. As this great article in the Economist makes clear, “Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right.” These major corporations want exactly that – copyright as a property right, in perpetuity and exclusively. With each case that an individual has to settle because of lack of money to defend themselves, copyright takes one more step in the wrong direction.

5). Public art is owned by the public entity which purchased the artwork. Copyright to pubic art is not normally transferred to the same entity. Just because an artwork is in the “public view” (outside) or is owned by the public, does not mean that the copyright is also owned by the public. Again, copyright is an exclusive right of the artist. Unless the copyright is formally transferred in the contract that was used to commission the artwork, the copyright is owned by the artist.

6). And finally, “ignorance of the law excuses no man; not that all men know the law; but because ’tis an excuse every man will plead, and no man can tell how to confute him.” John Selden (1584-1654), posthumously published in Table Talk, 1689.

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