photo © Mike Hipple
Seattle photographer Mike Hipple, who was sued for distributing a stock photograph of another artist's copyrighted art installation, has settled the claim for an undisclosed sum of money and has all but admitted wrongdoing.
"I believe I have good defenses but have come to understand that he [the other artist] has good claims. I also believe now that the financial stakes are such that it is not worth continuing to fight," Hipple announced on his blog yesterday.
Sculptor Jack Mackie sued Hipple in February 2009 for distributing a stock photograph of Mackie's "Dance Steps on Broadway," a series of stylized bronze footprints embedded in a Seattle sidewalk showing the steps to the Mambo. Hipple shot the photograph in 1997. Mackie discovered in 2007 that it had been distributed as a stock photo.
"Mr. Mackie's Dance Steps is a Seattle icon and a well known work," Hipple said in announcing his decision to settle. "I understand why he is so protective. I did not intend to attack his copyright when I took my photo, and I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright."
A trial had been scheduled to begin on July 11. At issue was whether Hipple's image of Mackie's "Dance Steps" was a fair use or an unlawful infringement. The court declined to grant a summary judgment on that question to Mackie. When the sculptor recently asked the court to reconsider, the judge again declined, emphasizing that "reasonable minds could differ" about the fair use question. The judge ruled that it was a matter for a jury to decide.
In short, the outcome of the case at trial was anything but certain, exposing Hipple to substantial penalties--including statutory damages--if he lost.
Hipple did not immediately respond to a request for an interview.
In addition to suing Hipple, Mackie sued AGE Fotostock, which had distributed the picture. AGE destroyed its copies of the image and settled with Mackie months ago.
Mackie's claim against Hipple wasn't his first lawsuit for infringement over unauthorized use of an image of his "Dance Steps" installation. In 1995, a graphic artist photographed his "Dance Steps" showing the Tango, and used the image in a brochure promoting the Seattle Symphony's "Pops" concert series. The defendants conceded infringement, and Mackie sought $100,000 or more in damages, but was ultimately awarded just $1,000 for actual damages. He appealed for more than that, but the US Court of Appeals for the Ninth Circuit affirmed the $1,000 award in 2002. In the Seattle Symphony case, Mackie was eligible for actual damages only, not statutory damages, because he hadn't registered the "Dance Steps of Broadway" installation before the Seattle Symphony infringed the work.