Photographer Defends Infringement Lawsuit for Photo of Sculpture

EagleinPineThe issue as to whether photographs of copyrighted works is a derivative work/infringement has raised its head again, and Mike Hipple probably thinks that it’s ugly. Specifically, as explained by my November 17, 2009, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works.   And for Hipple, the question is complicated by a possible fair use issue.

Hipple explained what has happened on his blog and has asked for financial support. The copyrighted work at issue is called “Dance Steps on Broadway.”  The sculptor, Jack Mackie, has alleged in his Complaint that  “Hipple unilaterally used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].  Hipple had offered the image for licensing through stock agencies that now have settled Mackie’s claims against them.

Hipple’s image at issue can be seen in Exhibit A to his Motion to Dismiss.  There, Hipple claims that Mackie has failed to plead the elements of copyright infringement in that the image is not substantially similar to the sculpture. Hipple also asserts that sculpture is not copyrightable and that it is a derivative work not entitled to copyright protection. It’s difficult, however, to win these types of motions at this stage of the litigation.

The U.S. Court of Federal Claims considered similar facts and legal issues in the  Gaylord v. The United States case.  The facts are convoluted, but, in sum, the artist of “The Column,” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work.  The court found the stamp to be a fair use because it was a transformative work, having a new and different character and expression from that of the sculpture. The court explained:

Mr. Alli,
through his photographic talents, transformed this expression and message, creating a
surrealistic environment with snow and subdued lighting where the viewer is left unsure
whether he is viewing a photograph of statues or actual human beings. Alli, Tr. at 377-78.
The viewer experiences a feeling of stepping into the photograph, being in Korea with the
soldiers, under the freezing conditions that many veterans experienced. Id. Mr. Alli took
hundreds of pictures of “The Column” before he achieved this expression, experimenting
with angles, exposures, focal lengths, lighting conditions, as well as the time of year and day.
Id. at 373, 377. Mr. Alli also achieved his vision using various photographic effects and
equipment. Id. at 375 (using a portrait lens and a tripod), 378 (using slide film), and 379
(choosing glossy prints). Mr. Alli’s efforts resulted in a work that has a new and different
character than “The Column” and is thus a transformative work. Campbell, 510 U.S. at 579;
Blanch, 467 F.3d at 251-52. The Postal Service further altered the expression of Mr.
Gaylord’s statues by making the color in the “Real Life” photo even grayer, creating a nearly
monochromatic image. McCaffrey, Tr. at 583. This adjustment enhanced the surrealistic
expression ultimately seen in the Stamp by making it colder. Id.; see also PX 26. Thus, the
Postal Service further transformed the character and expression of “The Column” when
creating the Stamp.

Mr. Alli [the photographer], through his photographic talents, transformed this expression and message, creating a surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statues or actual human beings. Alli, Tr. at 377-78. The viewer experiences a feeling of stepping into the photograph, being in Korea with the soldiers, under the freezing conditions that many veterans experienced. Id. Mr. Alli took hundreds of pictures of “The Column” before he achieved this expression, experimenting with angles, exposures, focal lengths, lighting conditions, as well as the time of year and day. Id. at 373, 377. Mr. Alli also achieved his vision using various photographic effects and equipment. Id. at 375 (using a portrait lens and a tripod), 378 (using slide film), and 379 (choosing glossy prints). Mr. Alli’s efforts resulted in a work that has a new and different character than “The Column” and is thus a transformative work. Campbell, 510 U.S. at 579; Blanch, 467 F.3d at 251-52. The Postal Service further altered the expression of Mr. Gaylord’s statues by making the color in the “Real Life” photo even grayer, creating a nearly monochromatic image. McCaffrey, Tr. at 583. This adjustment enhanced the surrealistic expression ultimately seen in the Stamp by making it colder. Id.; see also PX 26. Thus, the Postal Service further transformed the character and expression of “The Column” when creating the Stamp.

The court also noted that “the statues were not copied verbatim in the Stamp. Rather, Mr. Alli and the Postal Service used variables to lessen the quality and importance of ‘The Column’ and to alter the expression of the Stamp.”  Further, the stamp has not affected Gaylord’s attempts to market derivative works. Thus, Gaylord could not recover on his infringement claim.

Similar fair use arguments could be presented in the Hipple case.  But the ultimate answer will only come when the Washington court addresses these complicated issues.

Thanks to Jim Poor for submitting this topic.

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