Out of step

Broadway Dance Steps artist sues the Symphony.

ARTIST JACK MACKIE remembers his first brush with copyright infringement.

Years ago, the creator of the eight sets of bronze footprints hoofing along Capitol Hill's Broadway walked into a grocery store and spotted his famous Dance Steps artwork reproduced on a photo greeting card. Finding no additional information on the card, he simply purchased it and threw it away.

If only every case were so easily settled.

After enduring a three-day trial and more than two years of legal wrangling, Mackie was awarded just $1,000 in a federal copyright infringement suit over the inclusion of one of the Dance Steps pieces in artwork for a 1996 Seattle Symphony Orchestra promotional mailer. Mackie, whose legal fees total more than 10 times that award, will consider appealing the verdict, rather than have his case be used as a precedent to justify low payments for other copyright infringements upon fellow artists.

Seattle Symphony spokesperson Sandi Macdonald says the orchestra has acknowledged its error in using artwork that incorporated Mackie's sculpture. She also adds that symphony officials are pleased with the judge's ruling that the artist's reputation was not harmed by the infringement.

The specific facts of the case aside, the decision in Mackie v. Reiser spotlights two important legal issues involving public art. First, although an artwork may be created for and purchased by a governmental entity, the artist still retains the copyright to his or her work. Second, if artists fail to formally register their copyrights with the federal government, they will find themselves at a great disadvantage in court.

Mackie now knows the second point well. He promises that any article written about his case will receive wide distribution throughout the public art community. "I need to tell [artists] 'Read this, and go register everything you have,'" he says.

It isn't that Mackie is a total novice at the copyright game. In addition to the name of the dance depicted, the nameplates on each set of dance steps include copyright information for Mackie and collaborator Chuck Greening. However, Mackie was unaware of the additional protections provided through formally registering the copyright with the Library of Congress.

THERE'S NO EVIDENCE that graphic artist Bonnie Reiser knew Mackie hadn't registered his copyright on Dance Steps when she began a promotional campaign for the Seattle Symphony. It seems both Reiser and symphony officials simply assumed that "public art" and "public domain" were identical concepts and that they could reproduce Mackie's work without permission or credit.

Tom Hayton, Mackie's attorney, argues that such uses are an attempt to hijack the popularity of an artwork (and the goodwill people associate with it) into profits for an undeserving user. "They deliberately took advantage of [the Broadway Dance Steps'] image because people know it," he stated in his closing argument.

Curiously, neither Reiser nor symphony representatives disputed this view in their testimony. Symphony art director Mary Macenka admitted she immediately recognized the Dance Steps when Reiser showed her a photograph she planned to use in her artwork. Reiser seemed almost wistful when relating her intentions in including the piece in a full-page collage. "I thought I was doing something nice," she said. "I thought it would make the people who recognized it smile."

Mackie wasn't smiling, however, at Reiser's treatment of the image of his Tango dance steps. A photograph of his artwork was superimposed over a section of an architectural drawing from Benaroya Hall. (The imminent opening of the downtown concert hall was the major theme of the promotional campaign). Reiser also colored the final image with pastels and even added and subtracted a few visual elements of the Mackie piece—a use Mackie says he would never have approved. Reiser was so pleased with her work that she submitted the final image to a graphic arts trade magazine—then purchased 3,000 reprints of the resulting article to distribute to potential clients. It was one of the reprint recipients who tipped Mackie off to the copyright infringement.

Because Reiser appropriated the image of Mackie's artwork without permission, payment, or credit, plus made alterations that the artist would not have allowed, Hayton argued that the artist deserved additional damages beyond the price he might have negotiated for its use. Artists' representative Pat Hackett testified that Mackie would be justified in seeking up to $85,000 for the unauthorized use. But US District Court Judge Marsha Pechman put more stock in the testimony of defense witness Gerald Rapp, who testified that Reiser's reprint justified a payment of no more than $1,000.

CONTRAST THE result in this case with an infringement case involving another well-known Seattle public artwork. In 1996, two of the artists who created the Fremont Troll sued Prolab, Inc. for building an advertising campaign around a photograph of the sculpture. As the copyright for the Troll had been formally registered with the feds, the artists were specifically entitled by law to damages of $20,000 (or as much as $100,000, if the infringement is shown to be willful). Plus, they were entitled to request that the defendants be required to reimburse them for their legal fees. As the owner of an unregistered copyright until he decided to sue, Mackie wasn't entitled to either benefit.

The Fremont Troll case file demonstrates the complexity of policing a public art copyright. Copies of demand letters in the file document how artists Will Martin and Ross Whitehead had taken action to collect for the use of the Troll's image in advertising campaigns (Evergreen Bank), on circulars for a local clothing store, and on those ubiquitous photo greeting cards. Corporate infringers generally received a demand for a licensing fee of $2,000 to $4,000; smaller infringers were allowed to simply cease and desist. Although the Prolab case went to trial, the defendants decided the case wasn't going well and coughed up a $35,000 settlement after two days of testimony.

Originally, the Mackie trial was expected to be equally contentious. Before trial, lawyers for Reiser and the Seattle Symphony argued they had not violated Mackie's copyright for several reasons, including a claim that the public ownership and unique location of Dance Steps (the metal forms are actually imbedded in a public sidewalk) allowed reproduction under the "fair use" exemption in federal law. Fair use is a nebulous legal concept most commonly applied to photographs or video images used to illustrate news stories. For example, a newspaper article about Mackie might well include a photograph of the Dance Steps; likewise, media coverage of the Prolab suit always included images of the Troll sculpture itself.

But the file on the Fremont Troll case illustrates the limits of fair use: The University of Washington paid the artists a $750 settlement for a fashion shoot in its student newspaper, the Daily, which included a photograph of a young model perched on the sculpture. The Seattle Times also got dunned for a photograph of a child playing on the Troll, as it was a stand-alone feature photo, not an illustration for a news story.

Attorneys for Reiser and the Symphony narrowed the legal issues involved by admitting infringement just before the Mackie trial began. But, even though the trial concerned only the amount of the damages the defendants must pay, the testimony added more ironies to the parade of bizarre events surrounding the case. In hopes of bolstering the defendants' claim that the infringement was worth just $1,000, art expert Rapp produced an image of Mackie's Dance Steps that he claimed was being sold by a stock photo house for $1,000. What he didn't realize was that photo was being sold without Mackie's consent.

During trial preparation, the Seattle magazine Metropolitan Living also reproduced a photograph of a portion of one of the Dance Steps sculptures without permission. Unlike the Reiser infringement, that case was settled quickly. "The first words out of the publisher's mouth were, 'What do I have to do to make it right?'" says Mackie.

And here's the strangest fact of all: Even as the Dance Steps were being appropriated for use in the orchestra's brochure, former Seattle Arts Commission chair Mackie was working closely with symphony officials designing the public art program for Benaroya Hall. "All they had to do was ask," he says. "I was there."

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