The New York Times has an amusing article about Jeff Koons, the prominent artist whose use of pop culture imagery has made him somewhat of a successor to Andy Warhol in the contemporary art scene. Koons is accusing two businesses – a San Francisco bookstore and a Toronto manufacturing company – of violating his intellectual property rights by selling bookends that he claims copy, without permission, his famous “Balloon Dog” sculptures.
The irony here is that Koons himself has been sued for copyright violations four times, and lost three of those cases. Indeed, much of Koons’ work plays with the idea of infringement. Thus to some observers, Koons’ accusations of copyright infringement is hypocrisy – an example of a prominent, rich artist attempting to intimidate smaller fish. The Times notes that any successful infringement claim will have to demonstrate that the defendants copied what is specifically distinctive about Koons’ sculptures; in this context, that might be difficult for a jury to parse.
One expert notes that Koons might have more success with a trademark infringement claim – asserting that the defendants were misleading consumers into thinking that their bookends were associated with Koons’ sculptures – but that would require Koons to demonstrate that consumers were confused about pricing, and given that Koons’ sculptures are valued much, much higher than the bookends, it might be a difficult case.
Assuming this case goes to trial (and later to appeal), it touches upon one of the most vexing problems of intellectual property law – the capacity of judges and juries to make legal judgments about artworks. The American legal system has created several legal fictions – multi-factor tests like fair use or standards like the ability to separate “distinctive” vs. “public domain” aspects of creative works – to grapple with these problems. Of course, whether or not these guidelines actually help determine the lines that separate infringement, appropriation, homage, and reference remains a matter of debate.
The case has been dismissed, as you can read here: http://www.baycitizen.org/blogs/pulse-of-the-bay/jeff-koons-balloon-dog-copyright-claim/