Earlier this year, posts on this blog discussed fair use in the context of the Shepard Fairey/AP dispute over Fairey’s use of AP’s photo to create his Obama HOPE poster and the Cooks Source Magazine controversy about the use of a blogger’s recipe in that magazine. The source of the fair use dispute discussed in this post is the bronze dance steps on Broadway Street in Seattle. The Story Behind the Steps in the Sidewalk includes a picture showing some of the steps. Western District of Washington Judge Robert S. Lasnik recently denied plaintiff’s motion for summary judgment to dismiss defendant’s fair use affirmative defense.
Facts. The court indicated that these facts are undisputed. The significance of an undisputed fact is that an undisputed fact cannot create a genuine issue of material fact. A summary judgment motion is defeated by genuine issues of material fact. A genuine issue of material fact is a disagreement between the parties on the facts legally relevant to a claim.
Plaintiff Jack Mackie is a creator and copyright owner of bronze dance steps that are embedded in the sidewalk along Broadway Street in Seattle. The work is entitled “Dance Steps on Broadway” and is comprised of eight different dance patterns embedded in separate locations along Broadway. Plaintiff was inspired by Gene Kelly’s singing and dancing in the street in the movie, Singin’ in the Rain. He wanted to see whether people would dance along the street if they were given the steps. Plaintiff researched the dances, learned the steps, and worked with a foundry on the molds.
Defendant Michael J. Hipple is a photographer who took a picture of a model’s feet and legs while the model was dancing on the Mambo portion of plaintiff’s work. Defendant’s intent was to try out his new swing tilt camera lens. He intended for the bronze steps to be part of the photograph, but intended the dancing “feet with the star shoes and the legs of the model” to be the focus of the photograph.
Plaintiff sued defendant for copyright infringement and brought a motion for summary judgment to dismiss defendant’s fair use affirmative defense.
Summary Judgment Legal Standard. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To win a summary judgment motion, the moving party must show that no reasonable trier of fact could find for the non-moving party on any issue in which the moving party has the burden of proof at trial. “The Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in that party’s favor.” (Order pdf page 3).
The fair use defense permits the use of copyrighted works without the copyright owner’s consent under certain situations….The defense encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law’s goal of protecting creators’ work product.
(Order pdf page 4).
Courts examine four factors to determine whether the use of a copyrighted work is a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Purpose and Character of Use. Analysis of this factor includes these subfactors: whether the use is of a commercial nature, whether defendant acted in good faith, and whether the new work is transformative. (Order pdf page 5).
The court indicated that a commercial use is presumptively an unfair exploitation of the copyright owner’s monopoly privilege. The “crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the use stands to profit from exploitation of the copyrighted material without paying the customary price.” (Order pdf page 5). Defendant was in a position to make a small profit from his photograph.
The defendant’s conduct is relevant to the character of the use. Defendant argued that he acted in good faith and plaintiff did not contest the propriety of defendant’s conduct.
The parties disagreed on the transformative nature of defendant’s work. A transformative work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” (Order pdf page 5). The court found that there was an issue of material fact regarding whether defendant’s work was transformative enough.
Nature of Copyrighted Work. Some works are more creative than others. Fair use is harder to establish when the original work is highly creative. Defendant argued that because plaintiff undertook extensive research, his dance steps are informational. Although plaintiff researched the steps, he also changed the steps to make it more clear where to step next. The court thought the plaintiff had a stronger argument that the dance steps are creative in nature, but ruled that there was an issue of material fact regarding the nature of the copyrighted work.
Amount and Substantiality of the Portion Used. The court indicated that defendant’s photo quantitatively used a small portion of the copyrighted work. The work includes eight dance patterns and the photo included a portion of one, the Mambo. Plaintiff argued that the amount used by defendant captures the essence of the work. The court ruled that “a reasonable juror could conclude that the legs and shoes were the focal point of the photograph, rather than the dance steps,” and ruled that plaintiff did not meet his burden on this factor.
Effect of Use upon Potential Market. The court declared that this is the “single most important element of fair use.” (Order pdf page 7).
Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.
(Order pdf page 7).
Although plaintiff does not sell photographs of his dance steps work and has not received a fee for licenses or releases he has given, the past conduct of the copyright holder is not the proper focus of this inquiry. The court stated that “unauthorized photographs of the dance steps sold for profit could have an adverse market effect on the original and derivative works.” (Order pdf page 7).
Even though “plaintiff’s arguments are stronger in some factors, and weaker in others,” the court ruled that the plaintiff did not meet his burden on summary judgment and denied plaintiff’s motion to dismiss defendant’s fair use defense. (Order pdf page 8).
The parties notified the court of a settlement and the case was dismissed on June 21, 2011.
This case is Jack Mackie v. Michael J. Hipple, et al, C09-164 RSL, Western District of Washington at Seattle.