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Local sculptor is hopping mad at Macy's, so he sues
By adamg on Sun, 01/11/2015 - 1:01pm
Photo by Christine Espino. Used under this Creative Commons license.
David Phillips, who sculpted six frog statues at Frog Pond, says Macy's violated his copyright when it used a replica of one of them in a Christmas display at its Downtown Crossing store.
In a ribbeting lawsuit filed last week in US District Court in Boston, Phillips, whose studio is in Medford, charges:
Macy’s or its agents, servants or employees copied Phillips’ Fishing Frog sculpture without permission or authority from Phillips, and it used a copy of said statue in Christmas window display facing Summer Street in its downtown Boston store. Such copying, use and public display of the "Fishing Frog" sculpture without Phillips’ permission or authority constitutes an infringement of Phillips’ copyright for which he is entitled to damages.
Phillips wants a judge to order Macy's to hand over its faux frog and all of its plans and models for it, and to make the store swear it will never copy his frog again. He is also seeking a bit of green: Between $750 and $30,000 for infringing his copyright.
Phillips installed the frog statues in 2003.
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 Complet Phillips complaint | 110.12 KB |
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Comments
This is interesting
I'm sure that there are a zillion cases that serve to define fair use, but I wonder if this isn't new ground?
Consider the following:
Using, as a background for advertising, a photo of a streetscape, that includes images of a sculpture that is subject to copyright.
Selling photos of a streetscape, that include images of a sculpture that is subject to copyright.
Selling photos whose primary content is a sculpture that is subject to copyright.
Using, in advertisements, photos whose primary content is a sculpture that is subject to copyright.
Substitute "paintings or drawings" for photos above.
Substitute "physical replica" for photos above.
I'm no expert in copyright
I'm no expert in copyright law, but it's my understanding that photos or drawings would be considered transformative works. No one would mistake the photo as a substitute for the sculpture itself. But creating a replica of a sculpture as a sculpture...well, that gets a little grey.
My take
Minored in arts management as an undergrad and have a lot of background with IP law as it relates to creative works. If there happens to be a lawyer who can expand, correct, or clarify, I'd love that.
These would most likely never hold up in court. When you have statues in a public space, especially a major tourist attraction, it would be extremely unreasonable if it is truly "incidental"or the focus was something else in the photo and these happen to be a part of it. Also, A larger company would CRUSH an individual with legal fees by stretching litigation due to the murkiness here. There's probably also something that would prevent him from suing for something like this in whatever agreement the artist has with the city.
First two are winnable, because it is wrong and infringing without permission, unless there is some sort of wording in whatever agreement is there with the city to allow this in some context. The painting example is a great question. In theory yes, but there's a lot of grey area there. The issue again becomes a corporation with lawyers on payroll vs an individual paying by the hour. They can easily tie it up in litigation so long that it could bankrupt the average joe and make it not worth it. Wouldn't be surprised to see it settled out of court to save a PR crisis, but the company would still "win" in many cases.
Slam dunk. You can't do this for profit without the copyright owner's permission.
Sounds like a Kramer and His
Sounds like a Kramer and His lawyer , Jackie Chiles thing.
Macy's Christmas Display
Perfunctory, to say the least, with the awful music blasting that doesn't represent any type of recognizable Christmas music, just a pastiche of unconnected tunes, sending me walking on the other side of the street to avoid hearing it. A few windows with the same stuff they show every year, that nobody looks at. It was better when they had the scenes from "A Christmas Story."
A comparable controversy
Chicago's "Bean" / "Cloud Gate" sculpture has had some similar controversy.
From
I assume the same permission/licensing holds for sculpted reproductions.
So Macy's put a copy of Mr. Phillips'
frog statue in one of their window displays. And the reaction is "I'll sue the pants off them even though I SUFFERED NO HARM.
Hope the judge throws this TOTALLY FRIVILOUS lawsuit out.
He did suffer harm
Let's say I make the most amazing sculpture you've ever seen. It's the kind of thing that draws people from far and wide just to see it.
Then, someone in Portland says "I remember seeing that. I bet I could make a copy here." and they do. Then Chicago, and NYC, and Paris...everyone starts making copies of my work for their local cities without my permission. Now, nobody is coming to see my statue, they're looking at their own city's version. Then I find out that Pittsburgh made one but they didn't do a very good job and it's starting to crumble and people are saying "that guy's work is crap...it doesn't even hold up in the rain". And in Dallas, they put a big cowboy hat on it that doesn't even make any sense and people think it's stupid and blame me for it.
On top of that, all the ones in California, people are charging for their pristine copies of my work, so people are paying to see "my work" but I'm not seeing a dollar of it.
Now, did Macy's go to any of these extremes? No. And your argument is going to sound a lot better given that the most Macy's got out of it was a few people coming by going inside to buy something because they "liked the frog". But that's NOT Macy's right to do so and that's all that matters. Macy's isn't allowed to just recreate his sculpture no matter how much money it made them. The damages are because they've lessened his frogs in rarity/novelty and taken control of his own artwork away from him by doing so.
Huh what?
Let's say you owned a condo at a ski resort, and, some weekend, strangers were to enter your condo, live there, and then clean up after themselves, and you sued to recover the rent they didn't pay, would you be OK with the judge saying that you SUFFERED NO HARM, and that he was therefore throwing out the TOTALLY FRIVOLOUS lawsuit?
This is the worst analogy I
This is the worst analogy I've heard in over a month.
How so?
The case is about someone helping themselves to someone else's property, but in a way that, according to some, causes no harm to the property owner.
The day is coming soon
You'll see something like this sculpture. You'll walk around it taking a few different pictures as suggested by an app in your phone. You'll go home and feed these pictures into an automatic software that generates a 3D rendering of the sculpture and then it will run a 3D printer that generates a scaled foam blank or a foam reproduction of the sculpture for your garden or whatever.
It will be like pirating reality in the same way that people pirate music.
Right, and pirating music, or
Right, and pirating music, or software, or prescription drugs, or artwork are all illegal. Just because people don't really respect artists doesn't mean they should steal from them.