Careful where You Point that Thing

This is a cross-post of a posting I recently made over at the University of North Carolina Journal of Law & Technology blog. It features an intersection between my photography and my life as a law student. In my posting at the JOLT blog,  I did not outwardly ask fellow photographers to donate to Mike’s cause, however, I feel that appropriate in this forum. Mike’s battle to protect fair use rights for photographers is an extremely important one and he deserves the support of the photography community. Based on his latest blog posting, it appears that he has received that support.

Not all copyright holders are as understanding as New Moon director Chris Weltz, who expressed his displeasure with an attempt to prosecute a woman who recorded three minutes of footage of New Moon when the movie was running in the background at her daughter’s birthday. Photographer Mike Hipple recently ran into a particularly rigid rights holder when his photograph of a woman dancing on the public side walks in Seattle included part of the “dance steps” from the Jack Mackie sculpture “Dance Steps on Broadway”. Mackie required that Hipple’s stock agency remove the allegedly infringing photo from their website (which they did) and is now pursuing the full amount of statutory damages from Hipple. Hipple and his attorney have attempted to settle with Mackie, however, at the first mention of a possible fair use defense, Mackie walked away from the table.

Though some analysis has already been done on HIpple’s case, including comparing its facts with Gaylord v. The United States, this issue presents an excellent opportunity to review the concept of fair use. Fair use was originally conceptualized in Justice Story’s decision in Folsom v. March and is currently codified in 17 U.S.C. § 107.  Fair use is determined by looking at four factors and balancing them in “light of the purposes of copyright”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Analysis of factor one, the purpose and character of the use, commonly looks at whether or not the use of the copyrighted work is commercial in nature. In Hipple’s case, the use is clearly commercial in nature. There is another aspect of factor one, however: how transformative the use is. Castle Rock v. Carol described the transformative elements of a work as “creation of new information, new aesthetics, new insights or understandings.” Hipple’s work seems to be highly transformative. A portrait of girl who happens to be walking over Mackie’s sculpture clearly creates “new aesthetics”. Even if it was suggested that Hipple’s work built upon Mackie’s sculpture, Hipple added whole new layers of expression to the work. This layering of new expression is commonly viewed as highly transformative.

Analysis of the second fair use factor, the nature of the copyrighted work, could be particularly interesting. Though Mackie will try to claim a registered copyright in the work, this argument could be complicated by the fact that this work was done with public funds to enhance the streets of Seattle. Should a work that was done to benefit the public at large and is actually embedded on public street, have the same amount of “magic copyright dust” as the latest Harry Potter novel?

It’s difficult to analyze factor three and four, amount of the work used and the new work’s effect upon potential markets, without seeing an actual copy of the image. If the amount of the work being used is as minor as Hipple describes it, this factor could easily swing in his favor. Additionally, seeing a portion of the sculpture on the edges of an image that is primarily a photograph of a woman would seem to weigh the fourth factor in favor of Hipple as well. How could a photograph that a stock agency lists under keywords like “woman” and “potrait”, assuming that’s how it was listed, affect the market for Mackie’s sculpture? Even if the market at issue was only pictures of Mackie’s sculpture, that argument would be a stretch.

The final step in the fair use analysis is to balance the factors in light of the purposes of copyright. The U.S. Constitution states that the purpose of copyright is to “promote…the useful arts”. Photography is clearly in the realm of these “useful arts” that should be promoted. Combine that with a strong argument that at least three of the four individual factors, and possibly even all four individual factors, favor Hipple, and it appears that Hipple has a very strong fair use argument.

Whether Mackie himself strongly believes in vehemently defending his copyright or he’s simply being fed advice by an aggressive copyright lawyer, he is clearly the villain in this case. Mackie’s wielding of his copyright stick in the direction of Hipple, however, is not the only villainous act in this story. As Hipple pointed out, the stock agency that sold his photograph was also hit with a violation claim by Mackie and simply settled out of court. There has been lots of talk recently about how “microstock” agencies, such as iStockPhoto, are hurting the photography industry. Hipple’s situation would have been the perfect opportunity for a company like iStockPhoto and it’s backers at Getty Images to stand up for photographers. It would have been a chance for a company that has been built on the backs of thousands of photographers to give back to the photography community and defend photographer’s fair use rights, especially for images taken in public places. Instead of standing up for photographers, however, Hipple’s stock agency quietly settled and left him to fend for himself. Though Mackie’s actions in this matter border on deplorable, the gutless response by Hipple’s stock agency might be even more reprehensible.

This article originally appeared at http://jolt.unc.edu/blog/2010/02/10/careful-where-you-point-thing