Jack Mackie, litigator-artist: artists aren’t entitled to stop uses of their work merely because they don’t like those uses.

A friend (who happens to be a relative too) points out to me that the artist whose lawsuit I wrote about yesterday — Jack Mackie, creator of the popular outdoor artwork in Seattle known as “The Dance Steps” — has previously sued over the alleged infringement of his copyright in that work. He was largely unsuccessful in the earlier lawsuit, Mackie v. Reiser, 296 F.3d 909 (9th Cir. 2002), cert. denied 537 U.S. 1189 (2003), but not for a lack of trying — he appealed his case to the U.S. Court of Appeals for the 9th Circuit and even sought to have that decision reviewed by the U.S. Supreme Court.

In Reiser, Mackie sued the Seattle Symphony Orchestra for using a photo of part of The Dance Steps without his permission in a Symphony promotional campaign. Even assuming the Symphony’s use of the image constituted an infringement, the court ruled that Mackie was not legally entitled to statutory damages for copyright infringement because he had not registered his copyright in The Dance Steps; nor was he entitled to damages from the Symphony’s “direct profits.” He was awarded $1,000, based on the trial court’s determination that that is the amount he would have been paid by the Symphony for a license to use the work, but he even appealed that award as inadequate because he did not like the way the Symphony used the image of his work.

The court focused on his claim for “indirect profits” — that is, the profits the Symphony earned from its promotional material that were attributable to the allegedly infringing use of an image of Mackie’s work. But Mackie was not able to produce evidence that any of the Symphony’s profits were attributable to their use of the image of The Dance Steps. In fact, “Mackie’s damages expert had testified that it was impossible to determine how much of the Pops revenue could be traced to the infringing artwork.” Although the expert subsequently testified that he had been wrong and that he believed 1.5% of the Symphony’s profits from the campaign could be traced to its use of the image of The Dance Steps, the court held that that belief was too much based on speculation. Interestingly, at trial, Mackie himself “conceded that his putative loss of future earnings was speculative at best [and] . . . that he had previously given permission for others to use ‘The Tango’ without payment of a royalty.”

Finally, the court ruled that there were no grounds to award Mackie more than $1,000 to represent the amount the Symphony would have had to pay him for a license to use an image of The Dance Steps despite Mackie’s “personal objections to the manipulation of his artwork.” It is important to understand that copyright does not give an artist the power to stop a use of his work merely because he doesn’t like the use. And, indeed, the court concluded: “Although it is not hard to be sympathetic to his concerns,  . . . Mackie’s subjective view, which really boils down to “hurt feelings” over the nature of the infringement, has no place in this calculus.”