'Dance Steps' artist appeals judgment
Four years ago, Mackie sued the symphony and graphic artist Bonnie Reiser for using an image of his popular Capitol Hill artwork "Dance Steps" for an advertising campaign. According to Mackie, Reiser didn't get his permission before using the image, which was published on a brochure, the cover of a program, a poster and thank-you cards.
The whimsical bronze footsteps, embedded in the sidewalk along Broadway, mark out the patterns of several ballroom dances and are a Capitol Hill landmark. According to the artist, each piece of "Dance Steps" bears a date and copyright plaque.
Two years ago, U.S. District Judge Marsha Peckman determined that, even though "Dance Steps" is a public artwork, Mackie is the copyright holder. The court awarded him $1,000.
Yesterday, Mackie appealed to the 9th U.S. Circuit Court of Appeals. The judges heard arguments and may take up to six months or more to rule.
Mackie maintains his award was based on the value of a commercial stock photo and claims he should be entitled to a portion of the revenue from the campaign.
Steven Fricke, a lawyer for the Seattle Symphony, says it did not profit from a direct sale of Mackie's copyrighted image and used it only in a brochure. Regarding Mackie's award, he says, "It was fair, and that's what he's entitled to. That's what the judge determined. ... "
Thomas Hayton, Mackie's attorney, questioned whether it should be the burden of the victim to find and account for income and costs. He called the hearing "sort of a pingpong match."
Both attorneys agree the case could have far-reaching effects.
"It potentially has a very significant impact on copyright law in the 9th Circuit, potentially nationwide." Fricke said. "If there is a conflict (in judgments) in the 9th Circuit, it's one avenue of getting to the Supreme Court."
That's one reason Mackie says he's appealing. He's concerned that if he accepts the low judgment, it could set a precedent that would leave artists little recourse against advertisers profiting from their work.
"I've been fighting it on principle," Mackie said.
He criticized the way the court determined the original figure.
"They (the defense) hired this guy to come up with a price. He went to (a stock photo) Web site, typed in 'dance image' and came up with an comparable image. The photographer agreed to sell it for $1,000, with no credit necessary. The problem was, it was my image. It was stolen. It was my 'Dance Steps.' "
Hayton contacted the Web site the next day, traced the photographer, and reached a settlement for copyright violation in Mackie's favor for an undisclosed amount.
Sheila Farr can be reached at sfarr@seattletimes.com.