[UPDATE: Mr. Kapoor successfully made his point. The NRA has taken the image of his art out of its advertisement. On December 17, 2018, the parties in Kapoor v. NRA filed a dismissal of the lawsuit which usually means a settlement has been reached. The original "Violence of Lies" video is no longer available on YouTube. In the new "Violence of Lies" video, the NRA has deleted the image of the Chicago Bean and replaced it with an image of the Chicago Theater. The fair use issue was never decided by the court, but the matter resolved in the artist's favor.]
Original Post
The artist Anish Kapoor sued the National Rifle Association for copyright infringement. The NRA used an image of his sculpture Cloud Gate in a promotional video called "The Violence of Lies." Kapoor wants the NRA to stop using his work in its video and he wants damages — all the profit the NRA makes when someone pays to become a member after watching the video, $150,000 in statutory damages, and attorneys fees. (Here's the complaint in Kapoor v. NRA.)
Whether the artist will be successful at using copyright law to prevent the use of his work in a way he finds extremely distasteful is likely to turn on a fair use analysis. Fair use is a defense to infringement. The NRA used Kapoor's creative work, there's no question about that. The legal question is whether it made a fair use of the sculpture when including it in its video.
At first blush, the use looks fair. The NRA made a montage video, a tiny portion of which was a time lapse sequence depicting Cloud Gate. The sculpture, also affectionately known as the Bean, is a public work in a public place. The message it sends is not something the artist should be able to control once the work is installed for the public to enjoy and interpret for themselves.
Cloud Gate. Photo credit: Giuseppe Milo (CC BY 2.0)
Thousands of pictures and videos are taken of the Bean daily. It has become a symbol of Chicago. Those thousands of images aren't typically used in powerful political messages, however. Even if they were, the artist may choose not to enforce his rights as against all those uses. Kapoor has chosen to enforce his rights against the NRA. The NRA's use of the sculpture in its message may not pass the fair use analysis.
Kapoor Protected His Rights and Can Enforce Them
Cloud Gate was created over the course of six years. In 2006, it was installed in Millennium Park. Even though he sold the work to the City of Chicago, he did not sell his creative rights. Kapoor protected his rights by filing for a copyright registration on his work.
Why it took him nearly 10 years to file an application for registration is a matter of pure speculation. Perhaps others were trying to exploit the popularity of his work and he wanted to be in a position to exert some control over his creation as he is doing in this case.
An artist needs a valid copyright registration in order to bring a lawsuit for infringement. Even though copyright vests in an artist at the moment of creation, without a registration, you are limited in what you can do to enforce your rights in the United States.
How and Why is the NRA Using the Bean?
The video is an advertisement which ends with a call for individuals to join the NRA, "freedom's safest place." It is filled with imagery that the NRA described on Fox News as depicting "actual leftist violence" or "the resistance" combined with language condemning it. According to the Washington Post , the video "was designed to provoke fear, if not incite violence." The New York Times considers it to be one of the "latest flash points for partisan anger."
A black and white image of Cloud Gate is seen at second 17 of the 1-minute video. The sculpture is on screen for only about 17/100ths of a second, viewed from a single angle. Just before the Bean appears, the voice over says,"[T]hey use their ex-President to endorse. . ." then the Bean is shown and the phrase is finished with the words "the resistance." The image changes before the word "resistance" is completed.
When it appears, Cloud Gate is used as a visual representation of Chicago, the political home of President Obama. President Obama is depicted as the champion of the left. When the image is combined with the voice over, Chicago becomes the home of the left's resistance movement.
Now we come to the crux of the fair use analysis, has the video added "something new, with a further purpose or different character, altering [Cloud Gate] with new expression, meaning or message . . . . " In other words, is the video transformative of the original creative work?
The Code of Best Practices in Fair Use for the Visual Arts published by the College Art Association puts the principle of transformation a slightly different and possibly more easily understood way, "Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard." Does the video give us a new artistic meaning for Cloud Gate?
Cloud Gate is used in the video to conjure Chicago in the viewer's mind. The video does not try to make Cloud Gate the symbol of the resistance. It makes Chicago, as the home of President Obama, and Obama himself, the symbol of the resistance. Cloud Gate only represents Chicago in the video, nothing more, and that is a meaning that pre-existed the video.
Even if the artist did not intend Cloud Gate to become the iconic symbol of Chicago that it has become, the video did not bring new artistic meaning to Cloud Gate. It only tapped into a meaning of the sculpture that it already had. The NRA's use of the sculpture in its video is not transformative.
Making the image of Cloud Gate black and white is not transformative. Reducing Cloud Gate to a single two-dimension view in a time lapse video is not transformation. Neither of these elements generates new artistic meaning.
This first factor in the analysis, whether the use of the Bean in its video is transformative, weighs decidedly against the NRA.
Cloud Gate is Highly Creative
The second factor in the fair use analysis explores the nature of the copyrighted work. Highly creative work enjoys a high degree of copyright protection.
The Bean is not only highly creative, it is an extraordinarily innovative work. It captures the attention of and engages its audience in a way that has set a new standard for public art. The second fair use factor weighs in the artist's favor.
All of the Bean was Used in the Video
The amount and substantiality of the portion used in relation to the protected work as a whole is the third fair use factor. Cloud Gate was depicted in its entirety in its environment. The whole creative work was taken and used in the video. The fact that the two dimensional image of the sculpture doesn't vary in its perspective does not change my view on that. This factor weighs in the artist's favor.
There is No Impact on the Bean's Market Value
The fourth factor in the fair use analysis is whether the use has a negative impact on the market value of the protected work. I do not know how the artist is monetizing the work other than through the initial sale to the City of Chicago, but if he were selling paper weights or Christmas tree ornaments, the video might alienate buyers on the right side of the political spectrum from purchasing. I think that's a stretch, though.
The fourth factor weighs in the NRA's favor.
Kapoor v. NRA
On balance, I believe the artist will overcome the NRA's fair use defense.
It's difficult to set aside politics in a case and at times like these, but copyright law is not meant to suppress speech. It is intended to promote creativity. Resolution of the dispute calls for application of the four factors of fair use with a balanced look at the use of the copyrighted material in context. Ultimately, a judge will be asked to decide. In the meantime, artists make fair use determinations on a daily basis as they create new work or enforce their rights.
What do you think? Is the NRA's use of Anish Kapoor's Cloud Gate in its video fair or not? How would you decide Kapoor v. NRA?
The title image of Cloud Gate by Anish Kapoor was taken by Roman Boed and is used under a Creative Commons license (CC BY 2.0). The image has been modified with a color layer.
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Interesting. The Cloud Gate is such a recent (2006) icon of Chicago, I wasn’t aware of it. Usually, films use a Chicago skyline image that includes the Willis Tower–a.k.a., the Sears Tower– to establish a scene set in Chicago.
I’m also thinking of the plight of equine photographers who take competition action shots only to find their images used by animal rights groups for fund-raising and propaganda. Granted, those are basically sports action images, but a sports action image (John Rooney’s shot of a victorious Ali over Sonny Liston) can also become a cultural icon.
Could a ruling in favor of this artist also have an impact on such spot news coverage being used for political purposes?
Rhonda,
That fact that you were not aware of Cloud Gate as an iconic image of Chicago undercuts my argument in response to Dan about its use not being de minimus.
Action photos of any sport can become iconic and are protectible by copyright law. The photographer needs to take affirmative action to protect it, as Anish Kapoor has done with his sculpture.
This case is unlikely to impact spot news coverage. The NRA’s video is commercial speech, not news. The analysis is different, perhaps the subject of another post.
Great comments, thank you.
How do you define “commercial speech”? Would other or all promotional material published by a political candidate be considered “commercial speech”?
Suppose a political candidate publishes a 40-page, glossy, full-color, magazine-like piece (on paper that is entirely heavy cover stock) of promotional literature promoting his candidacy in a large press-run (700K); in this promotional piece is a copyrighted photo which the candidate or his campaign took from the photographer’s Twitter account and published without permission.
Photographer’s Twitter profile includes a blanket copyright notice and warns that permission is required for uses other than simple “sharing” within the Twitter platform. Further, photographer posted the photo in context of opposition to the candidate in question and would never permit the use without explicit permission.
Is candidate’s publication “commercial speech”?
Yes, I think that use is commercial speech and it sounds like an infringement to me. The politician should have licensed the photo from the photographer.
Could you please explain a bit more why this is commercial speech and not political speech? Is it because the photo is used for the promotion of a candidacy? Candidate’s attorney reportedly makes case for political speech (simply by declaring it so). What argument would you make? Thank you.
I think it likely the infringement claim will be dismissed on the pleadings because the NRA’s fleeting use of a photograph of the sculpture is de minimis. No fair use analysis required because there’s no actionable infringement. Ringgold v. Black Entm’t Television, Inc., 126 F.3d 71 (2d Cir.1997); Newton v. Diamond, 388 F. 3d 1189 (9th Cir.2004).
No doubt the NRA will raise the de minimus defense. But I think it will fail because a use is de minimis only if the average audience would not recognize the appropriation. Cloud Gate was taken in its entirety and is clearly recognizable by the average audience. In fact, my belief is that the NRA intended it to be recognized as a symbol of Chicago. That alone would defeat the de minimus defense. I will read your cases, however.
I’m sure we’ll hear more about this. Thank you for the comment and the cites.
The artist is asserting a copyright in the 3D sculpture, not the photograph of the sculpture that’s shown in the video — which is a seperately copyrightable work, that copyright being owned by someone else not identified in the complaint. So, right off the bat, we’re one step removed from appropriation of the allegedly infringed work. Moreover, the entire sculpture is not shown in the video, only one side of it. Yes, the sculpture is recognizable from the photograph of it shown in video. Interesting case.
I agree with you that it is an interesting case. But I disagree with you that changing the medium from a 3-dimensional sculpture to a 2-dimensional image results in a new protectible work. The photographer would have to disclaim the sculpture if he were to register his image with the Copyright Office.
Thanks!
This was incredibly informative. It does appear, based on your analysis that the NRA had limited standing.
I am however a bit confused on the first of the 4 points, whether the use is transformative. The other three were perfectly clear.
So, focusing exclusively on that point for this discussion; if the video had made the Bean representative of “The Resistance” it would have been in the NRA’s favor?
Politics aside, it doesn’t matter if it were the NRA, or the HRC, or the Girl Scouts selling cookies, I find it odd that the code actually promotes the idea of changing the artists intention.
So, a video of a group of Klansmen rallying around a statue of Martin Luther King and making him an idol of White Supremacy has more legal standing than a video of a group of Black Lives Matters activists rallying around the same statue to promote Civil Rights if The Code of Best Practices in Fair Use for the Visual Arts published by the College Art Association were to be applied?
Does it have to do with copyright law protecting the rights of the creator in the context of the works they created? So, I can’t rewrite Harry Potter and just change some names, but I can write a novel for young adults that takes place in a school for wizards in England.
That does seem a bit odd however in the context of visual art where the statue or piece of artwork IS the book.
David
If the NRA can articulate a way in which it made transformative use of the Bean, it would weigh in favor of fair use. There are those who say that the transformative test for application of the fair use defense has gone too far. It may end up that Napoor’s attempt to use copyright law to control political speech will lead the court to rule against him.
Great thoughts, David. Thank you.
Very informative; thanks for posting.