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Copyrights and Copy Wrongs: Learning from the Legal Precedents Set by Jeff Koons, Shepard Fairey, and Others
Courtesy of the artist
Chapman Kelly's "Wildflower Works I" was deemed uncopyright-able.
Patrick Cariou's victory last Friday in his copyright suit against artist Richard Prince — which determined that Prince's work did not sufficiently transform or comment on Cariou's original — signaled another startling development in the troubled and troubling history of fair-use rulings concerning the arts. But is it consistent with the other zany lawsuits of late that have seen artists go head to head with the laity in legal battles over supposed appropriation?
Copyright is complicated — particularly so when it comes to art and even more so since, as the the Copyright Principles Project pointed out in its 2010 Directions of Reform report, U.S. Copyright law was drafted in the 1960s, well before the Internet and globalized image-sharing made the widespread distribution and manipulation of imagery ubiquitous. ARTINFO here provides a handy roundup of recent and notable rulings concerning art and fair use — see which ones you agree with.
1. Fairey Use?
Shepard Fairey and the Associated Press faced off over Fairey's commercial appropriation of a photograph of Barack Obama — originally taken by the news agency's photographerMannie Garcia — for the street artist's iconic "Hope" campaign poster. Fairey sued in 2009 for a declaratory judgment stating that his appropriation was protected under the U.S. fair use statute and that he hadn't violated AP copyrights. He was promptly countersued for uncredited use of the image. Much enraged finger-wagging and many counterclaims followed, before feuding between Fairey and the AP was settled in January, when the news agency and the artist agreed to collaborate on a line of AP-Fairey branded merchandise. "The AP and Mr. Fairey have agreed that neither side surrenders its view of the law," the AP stated at the time, adding that both parties looked forward to capitalizing on the "Hope" poster design. The final wrap-up of the convoluted dispute came just this month, the Wall Street Journal reports, when the AP and Obey Clothing reached a deal in which they agreed to collaborate on the peddling of clothing bearing Fairey's graphic.
Shepard Fairey and the Associated Press faced off over Fairey's commercial appropriation of a photograph of Barack Obama — originally taken by the news agency's photographerMannie Garcia — for the street artist's iconic "Hope" campaign poster. Fairey sued in 2009 for a declaratory judgment stating that his appropriation was protected under the U.S. fair use statute and that he hadn't violated AP copyrights. He was promptly countersued for uncredited use of the image. Much enraged finger-wagging and many counterclaims followed, before feuding between Fairey and the AP was settled in January, when the news agency and the artist agreed to collaborate on a line of AP-Fairey branded merchandise. "The AP and Mr. Fairey have agreed that neither side surrenders its view of the law," the AP stated at the time, adding that both parties looked forward to capitalizing on the "Hope" poster design. The final wrap-up of the convoluted dispute came just this month, the Wall Street Journal reports, when the AP and Obey Clothing reached a deal in which they agreed to collaborate on the peddling of clothing bearing Fairey's graphic.
2. Koons in the Doghouse
We all had a good chuckle over this one, when Jeff Koonsthreatened a San Francisco gallery and a Canadian manufacturing company over their supposed unlawful appropriation of his balloon dog design. His legal team issued cease and desist warnings to both Park Life gallery and imm Living, demanding that they stop selling balloon-dog bookends by Christmas Eve, 2010, as the tchotchke pups infringed on the blue-chip artist's copyright and intellectual property rights. In January, lawyer Jedediah Wakefield offered his services pro bono to Park Life, drafting a federal complaint that called for a declaratory judgment on the matter. In his darkly humorous document, Wakefield put forth his case that, "As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain." The kerfuffle was resolved when Koons and his lawyers gave up their attempt to monopolize the pooch, allowing imm Living to continue cranking out the bookends and allowing Park Life to continue selling them, so long as neither used Koons's name to promote them.
We all had a good chuckle over this one, when Jeff Koonsthreatened a San Francisco gallery and a Canadian manufacturing company over their supposed unlawful appropriation of his balloon dog design. His legal team issued cease and desist warnings to both Park Life gallery and imm Living, demanding that they stop selling balloon-dog bookends by Christmas Eve, 2010, as the tchotchke pups infringed on the blue-chip artist's copyright and intellectual property rights. In January, lawyer Jedediah Wakefield offered his services pro bono to Park Life, drafting a federal complaint that called for a declaratory judgment on the matter. In his darkly humorous document, Wakefield put forth his case that, "As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain." The kerfuffle was resolved when Koons and his lawyers gave up their attempt to monopolize the pooch, allowing imm Living to continue cranking out the bookends and allowing Park Life to continue selling them, so long as neither used Koons's name to promote them.
To rewind a bit, Koons did, however, in 2006, win a suit brought against him by the photographerAndrea Blanch, whose "Silk Sandals by Gucci" image Koons used for his painting "Niagra." The artist won, in that case, because he borrowed only Blanch's legs, one of four pairs the photographer had pictured in her image for Allure magazine. Koons also inverted and modified the legs, sufficiently transforming them, and furthermore not endangering the original creator's income from her work.
3. Nothing But Flowers
This one's a twisty tale of artists' rights being upheld and then yanked away: In 2007 artist Chapman Kelley won a dispute with the Chicago Park District concerning his "Wildflower Works I," when a federal court determined that his 1984 "living painting" of 66,000 square feet of flowers was legally a work of art. Kelley had sued for $10 million in damages after the city removed half of the work in 2004 to make way for a development project. The artist argued that as his floral installation was indeed art, it was protected by the Federal Visual Artists Rights Act (VARA), which ensured that he be notified 90 days before any change was made to it. The parks department, meanwhile, upheld that the flowers were not copyrightable, as they were constantly changing form. In 2008, a bench trial in district courtreversed the first ruling, determining that the work was not "original" enough to qualify for protection under the Copyright act. The dispute eventually made its way to the Seventh Circuit, where last month it was determined that you cannot, in fact, copyright a garden, as it "is neither 'authored' nor 'fixed in the senses required for copyright'," the decision read. "Simply put, gardens are planted and cultivated, not authored." The court made sure, however, to distinguish between Kelley's "garden" and Jeff Koons's "Puppy," which it argued was a different thing entirely because of the huge, artist-made metal frame on which flowers are grown.
This one's a twisty tale of artists' rights being upheld and then yanked away: In 2007 artist Chapman Kelley won a dispute with the Chicago Park District concerning his "Wildflower Works I," when a federal court determined that his 1984 "living painting" of 66,000 square feet of flowers was legally a work of art. Kelley had sued for $10 million in damages after the city removed half of the work in 2004 to make way for a development project. The artist argued that as his floral installation was indeed art, it was protected by the Federal Visual Artists Rights Act (VARA), which ensured that he be notified 90 days before any change was made to it. The parks department, meanwhile, upheld that the flowers were not copyrightable, as they were constantly changing form. In 2008, a bench trial in district courtreversed the first ruling, determining that the work was not "original" enough to qualify for protection under the Copyright act. The dispute eventually made its way to the Seventh Circuit, where last month it was determined that you cannot, in fact, copyright a garden, as it "is neither 'authored' nor 'fixed in the senses required for copyright'," the decision read. "Simply put, gardens are planted and cultivated, not authored." The court made sure, however, to distinguish between Kelley's "garden" and Jeff Koons's "Puppy," which it argued was a different thing entirely because of the huge, artist-made metal frame on which flowers are grown.
4. Rented OutChinese artist Cai Guo-Qiang's "Venice's Rent Collection Courtyard" was modeled on the 1965 socialist-realist "Rent Collection Courtyard" sculpture, originally constructed by members of the Sichuan Fine Arts Institute. In the version from the 60s — copies of which can still be found around China, and a version of which toured to Massimiliano Gioni's 2010 Gwangju Biennale — more than one hundred life-sized figures are included in scenes of peasants suffering abuse at the hands of pre-revolutionary landlords. Cai enlisted ten Chinese sculptors, including one of the creators of the original piece, to remake the historic sculpture for the 1999 edition of the Venice Biennale, where the clay forms were left, unfired, to disintegrate. A lawsuit was filed against Cai for copyright infringement by some of the original creators from the Sichuan Arts academy, but the case was quickly dismissed by the courts.
5. "Anything you can get away with"Just to put this all in perspective, here's one from the history books. Andy Warhol, as you might expect, was sued multiple times by commercial photographers — including Charles Moore,Fred Ward, and Patricia Caulfield — whose images he appropriated for his Pop creations. All of those cases were settled out of court, with the artist appeasing the plaintiffs by giving them prints of the offending silkscreens — featuring Moore's images from the Birmingham race riots, Ward's images of Jackie O for Life magazine, and Caulfield's images of flowers. Warhol also promised Caulfield royalties from future sales of her floral photos. Wonder if she's living in some castle somewhere now, swimming in Champagne...
