Update on Lawsuit Against Photographer for Photo of Sculpture

Mike Hipple continues his attempts to defend the claim by Jack Mackie for taking and licensing a photo of Mackie’s sculpture.  The background of the case is reported in my February 3, 2010 blog entry.

As part of litigation, many courts require or at least allow the parties to mediate the case in an effort to resolve it without a trial. Mediation involves an unbiased court-appointed or privately-hired mediator who attempts to get the parties to resolve their differences by coming to a mutual agreement. Since mediation is not binding, you commit only your time and usually the shared cost of the mediator. If the mediation is unsuccessful, you retain your ability to go to trial.

The parties in the Mackie v. Hipple case recently mediated their dispute, and the mediator reported that “although the case was not resolved, [the mediation] was a partial success.  The mediation is ongoing . . . [and] the case might be resolved in the near future . . . .”

Recently, a Photo Attorney blog reader who also is a Canadian lawyer shared with me an interesting comparison of the United States copyright law and the Copyright Act in Canada with respect to photographing sculptures.  Specifically, Section 32.2(1) of the Canada Copyright Act states:

32.2  (1) It is not an infringement of copyright

[ . . . ]

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

[ . . . ]

By comparison, the US Copyright Act provides an exception only for photography of architectural works:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

See 17 USC 120.  Section 101 of the US Copyright Act defines architectural work as:

An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

So while you may photograph architectural works in the United States (similar to the Canada allowance in (b)(i) above), the US exception does not specifically include sculptures. Courts have disagreed as to whether photographs of copyrighted works are derivative works and thus infringe on their copyright if photographed without permission.  Hipple also asserted a fair use defense.

Interestingly, the Mackie sculpture is in a public place in Seattle.  His case was filed in Washington state. So if  the Mackie sculpture had only been on the other side of the border and in Canada, he definitely would have no claim against Hipple. We’ll have to stay tuned to see whether the parties settle the claims or the case proceeds so that the court will decide the validity of Mackie’s infringement claims.

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