Friday, January 21, 2011

Good Artists Borrow; Great Artists ... Sue? (Or, Does It Really Matter Who Got There First?)

In other news, attorneys representing legendary American painter Cy Twombly have filed suit in Akron, Ohio, against pre-schooler Becky Gunderson for allegedly violating Twombly's intellectual property rights by using squiggly swirls and smudgy crayola red valentines in a series of fingerpaint and pencil drawings she convinced her older sister Lori Ann to post for sale on E-bay. Twombly's attorney Wilmington Findlestien-Schmidt said at a press conference today, "There is no mistaking the blatant copying of Mr. Twombly's signature style in these drawings." Lori Ann Gunderson, speaking for her younger sister, who still has trouble pronouncing the "tw" sound, insisted, "We swear! Becky never saw Twombly's paintings before in her life. She's only 4!"

....OK, so let me be clear this time...the above is ONLY A JOKE (we wouldn't want another "Franco-in-Venice" situation to emerge from this post), but it reflects my first inescapable response to the suit being brought by Jeff Koons against a San Francisco gallery and store and a Toronto manufacturing company for allegedly violating Koons' intellectual property. The Times has the latest on this:
The artist Jeff Koons has developed a distinctive style, and made a lot of money, by appropriating pop-culture imagery and mass-produced objects, from inflatable toys to vacuum cleaners and kitschy greeting cards. Over his three-decade career that approach, while helping to make him famous, has also brought accusations of exploiting other people’s copyrighted images. He has been sued for copyright violation four times, losing three of the cases.

In a reversal of roles Mr. Koons is now going after two businesses that his lawyers say have violated his intellectual property rights by producing and selling bookends that resemble his famous “Balloon Dog” sculpture, 10-foot-tall versions of which have been exhibited at the Metropolitan Museum of Art and Versailles and acquired by major art collectors. Mr. Koons’s sculpture also comes in a 10 ½-inch version, comparable in size to the bookends.

In late December a lawyer for Mr. Koons, Peter D. Vogl of the firm Jones Day, sent cease-and-desist letters to Park Life, a San Francisco gallery and store that sells the bookends, and Imm-Living, a Toronto company that manufactures them.

Jamie Alexander, a co-owner of Park Life, and Rod Byrnes, a lawyer for Imm-Living, both rejected the idea that the bookends, which are made of painted resin and come in matte colors — unlike Mr. Koons’s reflective “Balloon Dog” — were a copy. The bookends are also slightly less bulbous than the Koons.
OK, so there is no question that a lot of people saw Koon's "Balloon Dog" at the Met and Versailles. How many of them live in San Francisco is a good question, perhaps, but more than that, I have to truly wonder how many people outside the minuscule fraction of the population we call "the art world" would first think of Koons upon seeing these tchotchkes:

[surprisingly blurry image from New York Times]

The manufacturing company that made them insists it "wasn’t familiar with Mr. Koons’s sculpture until it received the letter from his lawyer." And I have to say, I don't know for sure, but I do find that easy to believe.

Now I know just enough about such matters to know an entity with intellectual property to protect has to be vigilant in prosecuting violators lest a history of not doing so be used against them should they later sue. But that's about the extent of my legal knowledge, so I'll turn this thread in a direction much more aligned with my experience.

Far too many times to count in my career, I've had artists feel compelled to tell me that they were doing work like that on exhibition somewhere long before the artist getting attention for it now was doing it. It's human nature, I suppose. And yet for a few it seems to become a mantra. One artist I know has mentioned it about three very distinct bodies of work by three different artists. At a certain point, you'd think they'd take solace in how multifacetedly influential they seem to be and leave it at that.

I know outright theft takes place in the arena of new ideas and styles, but when another artist is doing work like yours and you know they were not before they saw your work, I still feel the only recourse you have is to take away a lesson from the VHS - Betamax war and realize it's all about who fights harder or smarter to win the hearts and minds of the public:
Exactly how and why VHS won the war has been the subject of intense debate. The commonly-held belief is that the technically superior Betamax was beaten by VHS through slick marketing. In fact the truth is more complex and there were a number of reasons for the outcome.

Sony's founder, Akio Morita, claimed that licensing problems between Sony and other companies slowed the growth of Betamax and allowed VHS to become established. However most commentators have played down this issue and cited other reasons as being more important.

It is certainly true that VHS machines were initially much simpler and cheaper to manufacture, which would obviously be an attraction to companies deciding which standard to back.

And in the art world, that seems to be one of the keys to emerging as the winner in battles to be associated with an idea: making a complex idea or development more accessible. That's not to say by dumbing it down or making it more commercial, but by working to bring to it
(imho) the ultimate in artistic achievement: clarity. Manage that, and no matter who was first with an idea, the public will turn toward you.

Of course clarity usually only comes through intense focus, and often years of it. But it will ultimately shine through any slick marketing by competitors.

Labels: art making, art marketing, copyright, lawsuit


Blogger Saskia said...

I actually work a lot with intellectual property issues in my day job.. I'm not a lawyer, but I work a lot with lawyers on patent issues related to my company. Of course, fair use is a bit of a different animal than patent, but even with patent, the tiniest little difference in design can make a big difference on whether someone is infringing or not, and if it goes to court, you never know how a jury who probably doesn't really understand the design will decide.

But one think you can say for sure with intellectual property; it's almost always the big guy that go after the little guy, because the little guy can't often afford to go after the big guy. Also, if you feel that someone is stepping on your intellectual property rights, there are many different levels of intensity with which you can go after them, and cease and desist is pretty hard core. As for the little guy like the company I work for, we work on the philosophy that as the little guy, we can be quicker and more nimble than the big guy, and that if they copy us as they always do, we're already on to something better anyway..

My guess on this Koons case is that either his lawyers were bored & needed to find some way to make billable hours, or Koons is running out of new ideas. Either way, it's pretty lame.

1/21/2011 09:58:00 AM  
Anonymous Stephen Truax said...

Died laughing at "violating Twombly's intellectual property by using squiggly swirls and smudgy crayola"

1/21/2011 10:05:00 AM  
Anonymous le cinemasagiste said...

I have a team of lawyers constantly googling for panoramic photographs that use a letterbox and are loaded with autobiographical cinema verite narrative. They are just itching to pounce.

1/21/2011 11:02:00 AM  
Blogger joy said...

Ugh. Koons is such an embarrassment to anyone who ever supported him. Which is why one has to support the 'principles' at stake and not the individual, since people will be idiots...The irony here is too thick to cut through....

1/21/2011 11:08:00 AM  

Brings to mind something Phillip Glass said about not writing the music so much as hearing it floating by on the river of universal consciousness. I feel like this accounts for what some perceive as others stealing their ideas mostly.

1/21/2011 11:27:00 AM  
Blogger joy said...

this is a great response:

"Cease & Desist"

1/21/2011 11:31:00 AM  
Anonymous Joanne Mattera said...

So I guess those tiny topiary puppies I've been cultivating for sale at the Union Square greenmarket in February are now off limits, eh? Too bad. I had a great sign to announce them. It had squigly swirls and smudgy valentines.

I'm going to have to fall back on Plan B: Progresso soup cans, silkscreens of Sophia Loren, and the Italian flag in wax.

1/21/2011 12:34:00 PM  
Anonymous Larry said...

Jeff ought to grow up.

1/21/2011 12:41:00 PM  
Anonymous Larry said...

Saskia writes: "it's almost always the big guy that go after the little guy, because the little guy can't often afford to go after the big guy."

And yet JK Rowling has both been sued by a little guy -

- and has sued a little guy:,2933,333785,00.html

Maybe she needs the money.

1/21/2011 12:45:00 PM  
Anonymous Anonymous said...

I don't fancy myself the brightest bulb on the planet, but I knew the Twombley story was a (good)joke right away. (I've seen kids scribbles and Twombley's scrawls, liked them both in different ways, but saw/understood their differences right away.) On the other hand, I'm surprised that Koons would want to invite comparisons to these schlocky, though fun and very silly pups.

1/21/2011 01:17:00 PM  
Blogger joy said...

this just posted to the nytimes artsbeat section:

Gallery Challenges Jeff Koons’s Balloon Dog Claim

[...] the gallery, Park Life, has asked a federal court for a declaratory judgment that states the canine shape cannot be copyrighted, according to Courthouse News Service. “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 gallery says in its federal complaint. “Any similarities between the Balloon Dog Bookend compared with the Balloon Dog Structure are driven by the wholly unprotectable idea of depicting the shape of a balloon dog in a solid form.”

1/21/2011 01:49:00 PM  
Blogger Christopher Quirk said...

John Waters was talking about Twombly in an interview recently and had the best "my kid could do that" comeback yet: "Well why DIDN'T he because that thing just sold for two million dollars!"

1/21/2011 02:13:00 PM  
Anonymous Stewdoo said...

Koons doesn't have a chance. It's obvious that his sculpture is based on the anatomy of a well-groomed poodle. Bookend dogs seem to be more feral in appearance. Blue and red? Indeed, they're all dogs.

1/21/2011 03:19:00 PM  
Anonymous Terri said...

Uff -- balloon dogs existed long before Koons appropriated the image -- it's a public domain item.

Now if you want to talk about "copying" in the sense of stealing from another artist/s, please look at Hirst. Please read this and see if you don't find Hirst to be a real a-hole: .

Hirst has made a career of stealing, and like the emperor's new clothes, gallerists, museum directors, and collectors "ooh" and "ahh" over his all-out criminal behavior. The art industry is sick, and needs a great deal of healing for it to serve the culture once again.

On the other hand, and in more honest hands, synchronous invention happens all of the time -- in art, in science, and in any pursuit that relies on inspiration for it's conception.

1/21/2011 04:03:00 PM  
Blogger George said...

I think Koons has a case. The issue is not about the copyright ownership of the balloon figure of a dog but of a solid sculpture made in that form.

It's not the same as a balloon figure. Since actually Koons made a sculpture in the shape of a balloon dog he can claim its copyright. The fact that there are some variations in the shape is irrelevant. Copyright law gives him the copyright to make "derivative" objects including something like the bookends. Koons is in fact doing just this making derivative objects, including pitchers, based upon his larger sculptures. They are being sold in the Gagosian bookstore on Madison Avenue.

Additionally, I suggest that the makers of the bookends are lying if they say they "weren't aware" of the Koons sculptures. The bookends were designed by someone with some knowledge of art and design, not a plumber, and I find it hard to believe that they would not be aware of the work of a popular artist like Koons.

On the other side, he cannot own the copyright on the entire balloon animal zoo, unless he makes them all and claims it.

1/21/2011 06:40:00 PM  
Blogger joy said...

George, your comment is interesting in that it's the only one that points out the distinction between a balloon dog and a sculpture based on the idea of a 'balloon dog'. However, this particular statement you make needs to be clarified: 'Copyright law gives him the copyright to make "derivative" objects including something like the bookends.'

As you know, 'derivative works' means something specific in copyright legal terminology: a derivative work is something that is based on an 'original' copyrighted work. One example of a derivative is an adaptation (like a movie that is based on a book); as such, derivative works are subject to licensing fees, permissions, etc. In the case of the bookends, I would argue they are not at all an appropriation of (a derivative of) a Koons balloon dog, but rather of the generic balloon dog that precedes the Koons' dog, the one that's in the public domain. Koons appropriated it for his art; these folks for bookends. They merely share the same source, and Koons wants to lock up that source and 'own' it.

What your observation also points to is something called the 'idea expression dichotomy'. It means that only fixed expression (specific sculptures of balloon dogs) and not the idea ('sculptures of balloon dogs') are protected by copyright. In this case, to make a sculptural representation of a balloon dog (which itself is in the public domain) is akin to shooting a photographic representation of a mountain, for example. Take that famous photograph of a mountain shot by Ansel Adams; just because he shot that particular mountain with the moon shining on it doesn't mean that others can't legally do the same. One may shoot one's own photograph of the moonlight-drenched mountain; only Adams' particular photo of it is protected, not the idea. In other words: you don't exclusively own your sources once you've used them to make an artwork. They don't belong to anyone; or they belong to us all.

So, it's only the actual fixed expressions - the sculptures or photographs themselves - that are protected by copyright, not the ideas ('sculpture of a balloon dog'; 'photo of that mountain'). The idea is fair game. That is the principle behind copyright, and it is often misunderstood, like with this silly, hypocritical attempt by Jeff Koons to control all balloon dog representations. He doesn't stand a chance, which is probably what his lawyer told him, which is prolly why he switched lawyers.

I suggest we all make our own sculptures of balloon dogs and simultaneously post them all over the internets in solidarity with public domain balloon dogs everywhere. :-)

1/21/2011 07:33:00 PM  
Anonymous Franklin said...

Koons is such an embarrassment to anyone who ever supported him.

Fortunately, I am spared this pain.

I'll say this, though: I worked for a while as a professional clown. I didn't do balloon animals, but some of my colleagues did, and I can attest to an enormous amount of prior art. imm Living also makes an origami crane tea light, and if Koons is able to claim ownership of sculpting such things out of more permanent materials as decorative objects, it's going to be a sad day for art and a sadder day for the law.

Since actually Koons made a sculpture in the shape of a balloon dog he can claim its copyright.

The balloon dog is already a sculpture, even when made from a balloon. Is it public domain when made from a balloon, copyrightable as steel, and infringing as resin? I hope they laugh him out of the courtroom.

1/21/2011 10:26:00 PM  
Anonymous Cathy said...

The clown has turned mean, all the world doesn't love him, but he'd rather wear rotten tomatoes than lose his audience.

1/22/2011 10:07:00 AM  
Blogger George said...

Joy, you know I'm sympathetic to the notion that ideas should be free and feel that anything that exists in the culture is fair game for artists to use. I'm just pointing out the other side of this issue. I've read the briefs on a number of copyright cases involving artists, including Koons. The law is vary vague, the decisions and precedents are very vague. I think Koons has a reasonable chance of winning his case. The bookends are knockoffs.

1/22/2011 11:15:00 AM  
Anonymous Franklin said...

I have an announcement - Cathy and I are engaged.

1/22/2011 09:26:00 PM  
Blogger Jacqueson said...

i just wanted to say:


1/23/2011 03:10:00 AM  
Blogger Jacqueson said...

i just wanted to say:


1/23/2011 03:11:00 AM  
Anonymous Gam said...

Franklin, if this is true of you and Cathy - congratulations!

1/23/2011 07:37:00 AM  
Anonymous Gam said...

fascinating how often the courts are asked to rule on "art".

Ed, your comment "... making a complex idea or development more accessible " rings true. There are tipping points and then there are momentum of change and then chaos of specificity. The significant moments in the history of art have lead to sustained changed outlooks in art, the accessibility you alluded to. Fashion's open ended "accessibility" seems to spawn continual innovation while their "remora's" feed on last seasons offerings making the accessibility factor deeper in their marketplace. The winner being the profession.

Ideas do much more spread around then isolated. In a digital epoch, preserving their "purity" seems much more challenging then at other times. interesting times

I always thought Koons concept/insight was scale of the quotidian. I'll have to look again.

Cathy and Frankilin, if the comment ahead was true , really way to go!

1/23/2011 07:52:00 AM  
Anonymous Anonymous said...

You write: "Now I know just enough about such matters to know an entity with intellectual property to protect has to be vigilant in prosecuting violators lest a history of not doing so be used against them should they later sue."

That is true if you are talking about trademark, but not true if you are talking about copyright, which seems to be the issue here. There is no requirement in the law that copyright owners enforce their copyrights to maintain them.

1/23/2011 09:12:00 AM  
Blogger Edward_ said...

Ahhh. Well, then I don't even know that much. Best if I stick to art and leave law well alone.

Thanks for the clarification.

1/23/2011 09:17:00 AM  
Anonymous Cathy said...

Thanks Gam! Franklin, you'll love Tulsa. I swear.

1/23/2011 09:26:00 AM  
Anonymous Terri said...

Blogger George said...

"The law is vary vague, the decisions and precedents are very vague. I think Koons has a reasonable chance of winning his case. The bookends are knockoffs."

Not so -- any more than a pair of Wrangler jeans are a knockoff of a pair of Levi's jeans. (Maybe you aren't aware of what the word "knockoff" means?)

The laws are actually also very precise in matters of copyright, because they are so often challenged in court.

If you *want* Koons to win, that's your own opinion, and you are welcomed to it -- just don't try to justify it with inaccurate statements about matters which you apparently are a little fuzzy about.

1/23/2011 12:41:00 PM  
Anonymous Anonymous said...

Ba Da Ba Ba Baaa...I'm lovin' it!
Are you kidding me...This is about a Baloon Dog? Go make somoe frakin' art you kitschy bastard!!!

1/24/2011 01:44:00 AM  
Anonymous Anonymous said...

i bought one before the ho-haw.
they were 34 bucks pre koons lawyer letter and 55 bucks after.

does anyone know where i could take it to have it spray painted a bright metallic color?

1/24/2011 10:56:00 AM  
Anonymous Anonymous said...

Koons is so lame. I never understood why he was ever taken seriously as a contemporary artist but this is beyond the pale. He needs to just go away.

1/24/2011 11:35:00 AM  
Anonymous Anonymous said...

Earl Sheib or any automotive paint shop could paint them for ya . I am gonna buy a pair and have them chrome plated, they are adorable.

1/24/2011 07:37:00 PM  
Anonymous Bernard Klevickas said...


Earl Sheib!

Who always said: "I'll paint any car any color".

you're showing your age Anon, (as am I).

1/24/2011 08:37:00 PM  
Anonymous Laura Isaac said...

I normally don't get too worked up by the out-of-touch-with-reality-celebrity antics of Koons, but this one (which I've been calling the "balloon dogs incident") bugged me.

George has a point that the solid form balloon dog is a big part of the Koons works... but I would argue that the book ends take that a step further. Those are weight-bearing structures, brilliant use of a balloon idea! Those balloon dogs are strong! I have to assume no one who paid $12,000 for a Koons 10-inch dog would dream of leaning books against them!

Which could also open up the whole art vs. useful object debate. These are working dogs. They have a job to do (ie keep your books from falling off of your desk.)

Thanks to Joy for posting my "Cease & Desist" video too! Crazy to see that it's made the rounds! Now in the solid dog theory I should be safe since MY balloon dog is less solid than a balloon... it's shadow! We'll just see if I get a letter. ;)

1/25/2011 10:16:00 AM  
Blogger Emilio Chapela said...

I want one those bookends so I can trick people into believing I'm stupidly rich to own an original Koon's.

1/25/2011 10:57:00 AM  
Anonymous Ellen Pober Rittberg said...

When you realize that there are only seven basic plots: just one of them, for example: person meets person, person falls in love with person, person loses person, person finds person, somehow that puts everything into perspective.

And by the by, Ed, congrats on being listed on Jerry Saltz's list of Top Ten show. Your are the Top.
Ellen Pober Rittberg
P.S. Cognac's hair is fair more noteworthy than the lashes, no? That it appears to defy gravity.

1/26/2011 01:14:00 AM  
Anonymous Helen said...

Excellent blog post.
Well, the next time some magician makes a balloon dog for my kid at a festival, I will be reminded of the grumpy, selfish artist that tried to squash little hearts and street performers with his apprpriated intellectualism. Long live little temporary balloon dogs everywhere.

1/29/2011 09:43:00 AM  

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