Artist Files Completely Frivolous Copyright Lawsuit Against The NRA For Briefly Showing Public Sculpture In Stupid Video
from the clenched-bean-of-truth dept
I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as "The Clenched Fist of Truth" or "The Violence of Lies." It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I'm not linking to the video because I don't need to give it any more attention and if you really want to see it, you know how to use the internet.
Now, let's move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago's Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It's called The Bean. I mean, officially, it's called "Cloud Gate," but no one calls it that. Even Kapoor now now calls it the Bean.
However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There's been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe -- with pretty damn good justification, I'd say -- that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this -- which is unfortunate.
Over the last year, Kapoor has been particularly up in arms over the fact that the NRA's silly video includes a ridiculous brief clip of the Bean. It appears for less than a second in a montage of clips. But it's there:
Kapoor has been unhappy about this for a while, and earlier this year penned an open letter to the NRA decrying its policies. This is good. This is what free speech allows.
However, this week, he took it a step further and filed a really, really dumb copyright lawsuit against the NRA (first noted by ARTnews).
The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA's video, rather than anything related to the actual copyright related rights at issue.
On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I'll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media.
I mean, yeah. But what does that have to do with copyright? Absolutely nothing.
The actual copyright claim is incredibly, laughably weak:
As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial.
Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won't work with him. Also this:
As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits,
Nah. That's not how it works. First of all, if the NRA is profiting from the video, it's not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery.
But the larger point: this is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.
The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with. We can all agree that the NRA is an odious organization with an odious message, but let's not dismantle the First Amendment just because of that group's ridiculous and dishonest methods for defending the Second Amendment. The NRA has every right to use that snippet and all Kapoor's lawsuit is doing is getting the NRA's video that much more attention. The case seems likely to get tossed out quickly. The case was filed in Illinois, which has an okay anti-SLAPP law, which means the end result may actually be that Kapoor ends up paying the NRA's legal fees.
We've talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of "but piracy isn't free speech." That's a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn't allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far.
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Filed Under: anish kapoor, chicago, cloud gate, copyright, free speech, public sculptures, the bean
Companies: nra
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Conflicting copyrights?
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Establishing case law
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Intangible
I'd like to see him enforce his copyright against a slightly different silver egg - can you imagine the headache it would give a judge?
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Re: Intangible
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OMG! Mentioned NRA! Next you'll claim support it AND copyright!
This one is neither supporting (as fanboys claim that you do), nor weakening copyright (as is visible every day from supporting pirates).
You ARE a bit entertaining, but your "editorial" acumen is only reducing after twenty years of practice! You provide hoots exactly for spending time on anomalies like this.
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Re: OMG! Mentioned NRA! Next you'll claim support it AND copyright!
https://pirates-forum.org/Forum-Economics-Law-Politics
Yes, he's still posting a few there for a few hundred views. Often the responses are funny, and oddly, right in line with MY views.
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Re: Re: OMG! Mentioned NRA! Next you'll claim support it AND copyright!
As we all know, there is only one Mike on the internet.
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Re: Re: OMG! Mentioned NRA! Next you'll claim support it AND copyright!
Read Pirate Mike again at:
I've told you this before, so not sure why you keep doing this, but I don't know that site and have never heard of it other than you linking to it. It appears to scrape and repost some Techdirt stories, but it's not me.
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Re: Re: Re: OMG! Mentioned NRA! Next you'll claim support it AND copyright!
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Re: OMG! Mentioned NRA! Next you'll claim support it AND copyright!
This case is an issue of free speech by way of copyright censorship. Kapoor’s lawsuit, in the highly unlikely chance that it succeeds, could silence the NRA’s protected expression of ideas. As much as I loathe the NRA, I would prefer to see them win this case and ensure that the censorious nature of copyright does not grow.
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Re:
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If owning a gun is a right but healthcare is a privilege, I will shout “fuck the Second Amendment” from the top of my lungs.
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Re: You have every right to own healthcare, just as I have every
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Tell that to the NRA and those who carry water for them. (I wonder if that water has lead in it.)
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Re: Tell that to the NRA
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The copyright of a sculpture prevents copying the actual sculpture. The copyright of a photo belongs to the person who took the photo. The instigator of this case should be fined for wasting the court's time.
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Re:
Thank you for your parody of an actual shithead.
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Re:
Thank goodness for this opportunity to allow you to virtue signal about hating the only group fighting for our second amendment.
It is possible to support the 2nd amendment and think the NRA is an odious organization that does more to harm the 2nd amendment than to help it with it's ridiculous and odious advocacy.
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So how is the NRA harming the second ammendment?
By being crazy. By pushing for divisiveness. By pushing fear. By falsely claiming that people are trying to take away their guns. By not standing up in defense of Philando Castile. By mocking children. By attacking video games every time there's a shooting.
All of those harm the 2nd Amendment. When they main group everyone thinks of as defending the 2nd Amendment appears to be off its rocker, it does not help. It entrenches extreme viewpoints and opens up no real discussion with those who don't understand the importance of the 2nd amendment as to why it's actually an important right.
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Re: Sounds like you simply don't like the concept of firearms ri
Just waiting for Lawrence’s Law to kick in...
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No, you're forgetting GOA and SAF
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Re:
Maybe they could use vantablack.
…wait shit
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Re: Re:
(Not sure a huge number of people will get your comment (as needs a bit of obscure art world knowledge) but those that do will appreciate it)
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Sculptures...
Easiest way to think about this is that it isn't the product that gets copyright, but it's the effort that the author spent creating the product that is the original source of the copyright. Once you spend effort for it, you get copyright for the tanglible results of your work. These tanglible results of the work can be anything from books, music, software, sculptures, designs, paperwork, photos, art, paintings, etc. As long as the author spent his time and effort to create the item, then copyright would attach to it.
Copyright's main value is protecting the interests of the authors when author is trying to make living from his own work. The author of the sculpture is clearly in this situation, given that he has managed to sell the work to government for excellent placement in the city.
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Re: Sculptures...
If it were in a museum, then the sale would have to have had to negotiate a portion of entrance fees at the time of sale. I have never heard of a museum making such a deal, though I suppose it is possible.
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Re: Re: Sculptures...
Of course authors of sculptors can invent indirect ways of getting income. If his sculpture is so popular that thousands of people travel to the place to watch the shape, of course the shops nearby might co-operate and work with the sculptor to get more tourists to visit the place. If their adverticements use picture of the sculpture to attract more visitors, then sculptor would need to be compensated for it.
NRA's ad video is likely to have the opposite effect. If tourists feel that there's tons of guns nearby the sculpture, they're not going to visit the place. Thus it's goood position from the sculptor that gun videos shouldnt be allowed to connected to the shape.
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Re: Re: Re: Sculptures...
Actually, the NRA hates Chicago, using of "The Bean" as background when the video mentions hometown hero Barack Obama is more about how the city goes out of their way to make sure there aren't any (legally possessed) guns anywhere near Millennium Park, or maybe how the NRA has (successfully) sued the city multiple times to roll back restrictions on gun sales and possession in Chicago.
Cloud Gate stands as a symbol of a city which spends $23 million on a shiny hunk of stainless steel, but can't find funds to prevent "wilding" in that same neighborhood every summer.
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Re: Re: Re: Re: Sculptures...
At least the problems are not large enough that the city would be forced to move funds from art budget to the crowd control or police budgets. Then it's just balancing whether you're curious enough to see what the city got in return of their 23 million dollars, or if you're scared enough of the gun-wielding population around the city. With large groups of people, the balancing decisions can go to different directions, based on the background of the person.
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Re: Sculptures...
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Re: Re: Sculptures...
Yes.
Sadly you can only get money if the usage is commercial in nature. Copyright owners who go after non-commercial use of the images gets some funny looks...
But there's huge potential in sueing internet companies who display photos of various gadgets. Like amazon must have tons of product pictures available, and all those gadget designs are copyrighted...
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Re: Re: Re: Sculptures...
And also because gadget designs are... not copyrighted! They can be patented, they can incorporate trademarks, but the mere photo of an object is not copyright infringement.
Taking a picture of a PlayStation 4 is not making a new game console and calling it a PlayStation 4. It is not making a duplicate of the PlayStation 4. It is not making something that could be used in place of the PlayStation 4 by someone who would like to use a PlayStation 4.
The only reason why this case has even the barest of tippy toes to stand on is because art has no purpose other than "to be viewed". A car has other purposes. A PlayStation 4 has other purposes.
If I sit down and plug a controller and pop a disc into a photograph of a PlayStation 4, the only game I'm playing is with the guard of my cell in the mental asylum.
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Re: Re: Re: Re: Sculptures...
Commercial use of photos of gadgets is still limited. Especially adverticements shouldn't be using competitor's product pictures to sell the competing product. Even if they snapped the pictures themselves, the ad shouldn't include the competitor's product in it. Basically this is usually handled via "adverticements shouldn't give false impression of the product being offered", but copyright issues are extreamly near this problem.
There are only small exceptions offered in the law about critique and review of the products, and even that should be done fairly. Bashing competitor's product in the marketplace via some shell companies is not considered good practise.
The actual issue is that the product design is protected, and the shape of the device communicates the quality what the company can archieve in their production. This stuff is also related to the import of product clones, trademarks, trade dress of the product, etc...
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Re: Re: Re: Re: Re: Sculptures...
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Re: Sculptures...
Sweat of the brow is not a component of copyright. Try again. Or don't, because you'd just embarrass yourself.
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Re: Re: Sculptures...
The requirements for creative aspect of the work are very easy to fullfill. It is guaranteed that professional artists who spent 6 years perfecting the sculpture's design will easily overcome the minimal creativity requirement associated for copyright.
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Re: Re: Re: Sculptures...
Fuck that noise.
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Re: Re: Re: Re: Sculptures...
Yes, this is what is actually happening. Some business folks got iterested in the adverticements, and there's now a plan to publish the product to wider audience, and that has chance of getting me the mansion requested.
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Re: Re: Re: Re: Re: Sculptures...
I'm not holding my breath, but you're welcome to hold your breath as long as you like, you self-professed professional troll.
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Re: Re: Re: Sculptures...
The fertilizer component here is getting deep...
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Re: Sculptures...
As the sculptor has sold the only copy of his work, he has accepted that the price he received is just compensation for the work, and should not be trying to gain money for what is not a copy of the real thing, but only an image of one aspect of the work, Hint the photograph does not even carry enough infomation to create a real copy of the work,
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Re: Re: Sculptures...
Full copy is not required for copyrights. It is already copyright infringement to copy 10 words from a book, so why would copying sculpture's shape be any different?
Note that most places in the world, photography in public places like in the city is allowed. Publishing the photo is completely different matter.
For same reason, RIAA can sue the people who play background music in their youtube videos, even though the majority of the video is harmless home recording -- they're doing publishing, not just simple usage.
Authors of copyrighted works just need to filter out other people's copyrighted works from their own products. The copyright's requirements for authors is significantly stricter than for general public who only use the product in their own home.
Television distribution places even stricter copyright requirements, simply because the size of the market where the product is being distributed. Television distribution usually must do copyright check with professional lawyers before publishing the material.
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Re: Re: Re: Sculptures...
Either you have never heard of the principles of Fair Use or you just hate the shit out of them, because that entire comment reads like you’re a Disney Lawyer.
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Re: Re: Re: Re: Sculptures...
Given it has been explained to them on multiple occasions it's the latter, assuming TP isn't intentionally being a poe/troll.
Given some of their other comments over the years I've long suspected that they're deliberately trying to parody copyright extremists by making statements so over the top on all things copyright and creativity, though given how nuts some of the maximalists have honestly been it's entirely possible that they do in fact mean what they say.
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Re: Sculptures...
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Re: Sculptures...
Not really, unless you're looking at some very boring sculptures. There's as much value in the craftsmanship, details and placement as there is in the shape. Michelangelo's David has many valuable qualities, not simply because it's in the shape of a man. Even this particular sculpture appears to be notable for much more than its shape.
"Easiest way to think about this is that it isn't the product that gets copyright, but it's the effort that the author spent "
Not true. I get the same copyright if I spend an afternoon doing something as the person who spent 10 years perfecting his work.
"As long as the author spent his time and effort to create the item, then copyright would attach to it."
Again, not true. If I take a random shot at my desk here at work with my phone right now, I get the same copyright as the person who spent thousands setting up a photoshoot. The resulting work will likely be more valuable with the latter, but that doesn't change the copyright status.
"Copyright's main value is protecting the interests of the authors when author is trying to make living from his own work. "
Also, again, not true. Copyright's main value is in encouraging the creation of new works - its stated original purpose. One of the ways it does this is by creating a temporary monopoly. However, it could be argued that overbearing copyright has the other effect - people trying to make money ad infinitum from older work instead of creating new ones.
"The author of the sculpture is clearly in this situation, given that he has managed to sell the work to government for excellent placement in the city."
So... by your own admission, he has already made the required level of profit from the single sale to the city that is possible with this one item. He cannot sell it again. If he requires more money, he needs to do more work. Copyright only provides the temporary monopoly so that nobody else can profit before he does. It gives him no additional rights over the item itself after sale, especially if he sold it to be displayed in a public space. It's also pretty clear that it's the political use that's being objected to here, not profit, but even if was the latter he's got what's coming to him from the sale already.
Logic is still not your strong suit, is it?
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Re: Re: Sculptures...
The whole history of copyright says that that is political spin by those who would gain control over the works of others for their own profit; that is to say publishers, labels and studios. Why else would the main push for longer and longer copyright come mainly from those organizations, and their representatives.
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Re: Re: Re: Sculptures...
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Re: Re: Sculptures...
This isn't true. If author spends 5 years perfecting the design, his rent and food bills are already larger than what "profit from the single sale" can provide. Obviously the author needs to have additional income stream coming from the same amount of effort.
It's not valid position that the author needs to redo the work to pay bills for the food he spent while creating the work.
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Re: bills are already larger than what "profit
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Re: Re: Re: Sculptures...
Not anyone else's problem if he didn't get a sale big enough to cover his costs. Maybe get a better agent next time. If I don't manage to cover my bills from this month's salary, can I bill someone else for my work too, or do I have to do more work?
"It's not valid position that the author needs to redo the work"
Good thing that nobody's position is anything like that then. But, everybody else in the world needs to continue working after they completed a project in order to get paid again. Why shouldn't artists?
If this guy was a contractor and didn't make enough from the house he just built to cover his costs, he'd be a poor businessman and would need to make sure he gets the figures right for his next project. He wouldn't be able to demand rent from people living there or sue people for taking pictures of it after it sold. Why does this guy get a pass from you because he built a bean and not a house?
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Re: Re: Re: Re: Sculptures...
Imagine extending that logic to, let's say, admin work or plumbing, etc. See how silly it becomes? Do one job, get paid once, then sod off and do something else. The world won't suffer if these selfish gits stop carving giant eggs because they can't milk them for all they can get years after the fact.
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Re: Re: Re: Re: Re: Sculptures...
But, here? It's a single sculpture, sold off as a single possible sale. He (at least in tp's version of events) sold it to be displayed in a public setting, then realises he didn't sell it for enough and wants more? Well, tough. I don't get to go back and negotiate a higher rate for work I did a while back because I realise I get screwed on the transaction. I learn from my mistakes and do my next project with better compensation.
Luckily, unlike tp, I don't think this guy has money as his sole motivation in life. This seems more like he's angry that it's being used specifically by the NRA and doesn't want them to be associated with his work. He can't stop them, for very good reasons, but he's not being motivated by greed at least.
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Re: Re: Re: Re: Re: Re: Sculptures...
This statement explains why you don't understand the issue. The "properly" keyword is just too much. Most of the art produced on the planet doesnt get paid _at all_. The artists are fighting for government subsidies and unemployment benefits, while the world consumes the products for free.
It's just happy to hear that some artists are actually able to sell their products to the city. This is a rare event that artist actually can make proper living doinng what his education is designed for. If he manages to get proper placement in the city for his art that people actually can enjoy the end result, there should be good ways also to make a profit from it.
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Re: Re: Re: Re: Re: Re: Re: Sculptures...
Irrelevant to what you're discussing.
"The artists are fighting for government subsidies and unemployment benefits, while the world consumes the products for free"
Name a time when this wasn't the case. The only artists who have ever been guaranteed a payment are those working under patronage.
"If he manages to get proper placement in the city for his art that people actually can enjoy the end result, there should be good ways also to make a profit from it"
There is - the sales contract he organised with the city when he sold it to the public!
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Bull! I am a life member of the NRA and absolutly support their political agenda. They fight againse those who want to ban private firearms ownership. It was a good article until the political sniping got thrown in.
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Re:
Do they? Or, do they just profit from idiots that they're managed to convince that "the other team" are realistically trying to do that?
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Work for hire
US have punishment for false claim, copyright fraud?
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Wait a second...
Has Kapoor committed contributory infringement by reflecting photons from other people's copyrights? =D
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Things about the Bean worth noting
But while it is true that Chicagoans mock the the Bean, we also love the Bean. And one of the Bean’s greatest features cannot really be adequately photographed, which is being inside the Bean and experiencing the amazing reflective interior topology that Kapoor has created. It’s well worth a visit to the Bean. I wouldn’t urge anyone to come to Chicago just to see the Bean, but if you’re here anyway it is something you shouldn’t miss.
If I ever commission a piece of public art—pretty bloody unlikely, mind you—I will either require FULL rights be included, or the art to be contractually placed under an irrevocable CC0 Creative Commons license.
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Well said.
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NRA, 2nd Ammendment, silly suit ...
"The case was filed in Illinois, which has an okay anti-SLAPP law, which means the end result may actually be that Kapoor ends up paying the NRA's legal fees."
The NRA will be laughing. Kapoor may actually be *helping* them. Maybe he pays their fees and they get all this publicity and can spin lines about crazy anti-gun nut artists (the left!) suing them.
Ha ha.
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public art
I wonder why those spending public money, especially for public display items, don't always consider the public's rights. Every contract should be reviewed to make sure the public's interests are being met. And stop allowing private individuals and corporations to profit from their sales to government after the initial sale.
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Copyright everything
Then Hollywood, the King of copyright extension, can go nuts trying to pay license fees or get releases for every building that shows up in movies.
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We can all agree that the NRA is an odious organization...
Actually no, no we can't.
I find all the excessive "I'm not defending the NRA here, no really, I hate them too" added to the article really detracts from the topic at hand, that complete lack of any merit to Kapoor's lawsuit.
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Re: We can all agree that the NRA is an odious organization...
To quote Barack Obama: “Yes we can”.
Given their willingness to trample all over the rest of your Constitution just to uphold the “right to bear arms”, complain about violence in video games, and then perpetrate some violent games of their own ...
... yes, I think “odious” is a pretty apt description of what they are.
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Re: Re: We can all agree that the NRA is an odious organization...
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Re: that was Barak himself doing that.
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Wrong way to go about it
But copyright is not a good way of trying to make his displeasure known.
There have been legal cases arguing false endorsement / reputational damage - that would have been the way to go.
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Re: Re: We can all agree that the NRA is an odious organization.
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We can all agree that the NRA is an odious organization with an odious message, but let's not dismantle the First Amendment just because of that group's ridiculous and dishonest methods for defending the Second Amendment.
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Geez Mike, I know you don't like Trump and haven't minded saying so in the past on occasion, but this snide attack on the NRA was really over the top. You had some good commentary going there until you wrote that paragraph.
So, no, we can't all agree.
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Re: Re: Re: We can all agree that the NRA is an odious organization.
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