Photographing public art: a persistent fair use problem

I have a friend, a sculptor, who has sold several of his pieces as public art. He laughs at the idea that he could somehow recover more money than he has already received for any use the public makes of his sculptures. And he’ll soon be a lawyer. The way he figures it, he’s sold unlimited public use of the art for whatever uses the public will make of it — even money-making uses.

But his view is a generous one. Often the creators of public art will pursue anyone who uses images of their public art under the copyright laws. To my mind, it’s one more of an infinite  number of  manifestations of our collective obsession with converting everything we can into a marketable commodity. Nevertheless, the efforts of artists to restrict others from making and using images of their public art is far from frivolous. Donn Zaretsky and I had a couple of go rounds last year in connection with the use on a postage stamp of a photograph of the Korean War Veterans Memorial in Washington, D.C. I am still convinced that the postage stamp in that case makes fair use of the image of the memorial, but we’ll have to wait and see whether my conviction that it isn’t even a close case is vindicated.

But now from the Citizens Media Law Project comes word of a similar, and perhaps more difficult, case, from Seattle, where photographer Mike Hipple is being sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the “Dance Steps on Broadway” sculpture in Seattle’s Capitol Hill. As the Citizens Media Law Project explains:

The lawsuit has outraged scores of residents who find Mackie to be out of step with the public’s interest. Mackie installed the eight sets of inlaid bronze shoe prints, mapping out well-known dances such as the waltz and rumba, in 1982 when the city rebuilt the neighborhood’s sidewalks. Despite receiving public financing for the project, Mackie retained rights to the artwork. Those rights, according to § 106 of the U.S. Copyright Act, include the exclusive right to reproduce the work or to create derivative work from it.

Finally, I agree with the following sentiments: “any scheme that involves paying to photograph seems antithetical to the public interest. The most reasonable solution is to keep public artwork completely open to the public. Until cities do this, however, commercial photographers may want to think twice about incorporating public artwork into their photographs.”

Nevertheless, I also agree with Hipple that the photo constitutes fair use of the sculptures image? Why? Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions. I don’t know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on our madness to monetize everything the sooner we’ll be sane.