Mackie v. Rieser

Jack Mackie (plaintiff) created “The Dance Steps,” a popular outdoor artwork in Seattle, Washington. “The Dance Steps” was comprised of several cast-bronze artworks displaying different dance steps that were implanted into the sidewalk, including “The Tango.” “The Tango” included Mackie’s copyright notice. However, although Mackie held a copyright for “The Tango,” he had never registered the copyright. The Seattle Symphony Orchestra Public Benefit Corporation (Symphony) (defendant) engaged Bonnie Rieser (defendant), a graphic artist, to design a brochure promoting the various series the Symphony had planned for the upcoming season, including the “Pops” series. For the “Pops” series’ page in the brochure, Rieser created a collage artwork that included manipulated photographs of Mackie’s “The Tango.” The collage omitted Mackie’s copyright notice. Mackie sued the Symphony and Rieser for copyright infringement, seeking (1) actual damages for loss of royalty payments and loss of future employment opportunities and (2) indirect profits damages, alleging the Symphony profited from its infringing use of “The Tango.” During discovery, Mackie’s expert admitted it was impossible to determine how much, if any, of the Symphony’s revenue for the “Pops” series resulted from the infringing artwork. At trial, Mackie admitted he had never previously charged a royalty fee for using “The Tango” and that the infringement did not affect the market value of “The Tango.” The district court granted Mackie $1,000 in actual damages, representing a reasonable lost-royalty fee, but denied Mackie’s claim for indirect profits damages as speculative. Mackie appealed.