Infringment, or Fair use?

I came across this story twice on Twitter today:

http://www.petapixel.com/2010/02/03/public-art-lands-photog-in-hot-water/

The article pertains to whether or not photographer, Mike Hipple ,infringed on the copyright of sculptor, Jack Mackie , when he created this photograph:


Mr Hipple, created this photo and licensed it for sale as a stock image; to reap financial/commercial gain. Here and Here are links to see part of the original work.

I think Mr. Hipple's photo shows enough of the original work to leave no doubt as to where the subjects are standing. As a matter of fact, Mr. Mackie's work is integral to the compositional success of this particular photo.

Within copyright law there is room for another person to use part of an artists work for several reasons. Here is a clip from the US governments website of Title 17, copyright law:

"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. (emphasis mine)Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work"

So, did Mr. Hipple infringe upon Mr. Mackie's copyright? Only a court of law can determine this. Matter of fact here is another quote from the copyright site:

"The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. "

However, from my perspective, I think Mr. Hipple did in fact infringe. I am sorry Mr. Hipple. Here is an excerpt of what Mr Hipple has to say about the suit:

"Think of it this way: if Mr. Mackie is correct and this isn’t fair use, then he can file a $60,000 law suit against anyone who, when strolling along Capitol Hill, thinks the dance steps are nice and takes a photo or video. He may not find you if you just leave the image on your camera or computer, but as soon as you post it to Facebook, Flickr, YouTube, etc., he can (and apparently will) sue you."

I believe the above statement is wrong. If you are a tourist, taking photos of cool art you see while on vacation, and not trying to sell said photos for profit, but only sharing with your friends on Facebook, etc. then you are not infringing on copyright. The minute you try to make a commercial gain from someone else's work you are in trouble.

One more part of copyright law to consider is derivative works. Here is a bit of info about how a new work might be considered derivative or not:

"A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable."

-From: US Copyright Office Circular 14: Derivative Works

According to the above it does not appear, to me, that Mr. Hipple's work can be considered a Derivative work that is independently copyrightable.

The Law Suit

Mr. Mackie first contacted the stock agency that held the image. The agency agreed with him, removed the work and gave him a settlement. Mr. Mackie made his claim of infringement known, and the stock agency complied and gave him money. I believe that his further law suit against Mr. Hipple is now just frivolous.

As a professional photographer I am not sure how I want this case decided. On the one hand, I can sympathize with Mr Mackie. Why? Because I would not want to be in his shoes. If someone created work for commercial gain based on my images, I'd be pissed.

However, I may side with Mr. Hipple for two reasons. 1)I can't stand frivolous law suits. As stated above, Mr Mackie already received financial compensation. 2)How would this play out, if Mr. Mackie does win, for taking professional photos in public places. All public art and buildings might become off limits.

I did some research here to support my feelings, and I may change them as the case moves forward. But as of now I think they are both in the wrong to some degree.

So what do you think?