NY Times coverage on this absurd legal situation.January 7th, 2011
By KATE TAYLOR
Published: January 19, 2011
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.
Mr. Alexander said that he had not responded to the cease-and-desist letter, and that he is still selling the bookends.
“I’ve been talking to lawyers about possibly taking this case pro bono,” he said, adding that the lawyers “feel really strongly” that the accusation is baseless.
Mr. Byrnes said that his client, a two-year-old company that makes design objects, wasn’t familiar with Mr. Koons’s sculpture until it received the letter from his lawyer. He said he had responded to Mr. Vogl and was waiting to hear back.
“We’re more than willing to vigorously defend this,” he said. “We think they’re totally wrong.”
Mr. Vogl declined to comment, and Mr. Koons’s studio did not return calls seeking comment.
The dispute was reported in The Bay Citizen, a nonprofit news organization in San Francisco, and was picked up by bloggers, who have had a field day mocking Mr. Koons for seeming to claim the rights to all balloon dogs, particularly when so much of his own work is based on appropriation.
Experts said that given the objects’ differences and that Mr. Koons’s sculpture was based on an object in the public domain, he might have difficulty proving that the bookends violated a copyright. Robert W. Clarida, an intellectual-property lawyer, said that in such a case a judge would probably instruct a jury to filter out the characteristics of balloon dogs in general and focus on what was distinctive about Mr. Koons’s version; if Imm-Living didn’t specifically copy that, it wouldn’t have violated Mr. Koons’s rights.
He said Mr. Koons’s lawyers might have a better chance by claiming a trademark violation, asserting that the company or the store was misleading consumers into believing that the bookends were made by Mr. Koons. At the same time, he added, “I’m sure his 10 ½-inch balloon dog is a lot more expensive than this bookend, so how much confusion in the relevant market would there be?”
The bookends sell for $30 each, while several of Mr. Koons’s smaller balloon dogs are for sale on eBay for prices ranging from $7,250 to $12,500.
Mr. Byrnes pointed out that there were many balloon-dog products on the market, from key chains to earrings, and questioned why his client had been singled out. Some other products, like the shiny-red balloon-dog Christmas ornaments on sale for $10 on the Urban Outfitters Web site, actually look more like Mr. Koons’s sculpture than do the bookends.
Mr. Koons has had several well-publicized brushes with copyright law, most notably in the wake of his landmark “Banality” show at the Sonnabend Gallery in 1988. Shortly after the exhibition he was sued by a photographer, Art Rogers, whose black-and-white photograph of a couple holding eight German shepherd puppies was used by Mr. Koons as the basis for a sculpture called “String of Puppies.”
Mr. Koons’s lawyers said that his appropriation of the image constituted fair use, arguing that the sculpture was intended as a parody of the kind of trite, mass-produced sensibility that the photograph represented. But the courts didn’t buy it; Mr. Rogers was granted summary judgment, which was affirmed by an appeals court. (The three-judge appellate panel was particularly harsh, accusing Mr. Koons and Sonnabend of believing that because they were major players in the art world, they could get away with piracy.) The case was settled for an undisclosed amount.
Mr. Koons lost two subsequent suits stemming from the “Banality” show, one by another photographer and a second by United Feature Syndicate, which accused Mr. Koons of violating its copyright on the dog Odie from the Garfield comic strip. Those cases were also settled for undisclosed sums.
In 2006, however, Mr. Koons surprised those who had come to see him as an easy target for copyright suits by winning a case brought by a fashion photographer whose image of a woman’s legs and feet he had used in a painting. In that case the court agreed with Mr. Koons’s lawyers that his use of the image fell under fair use, in part because the image was part of a larger collage.
William M. Landes, an emeritus professor at the University of Chicago Law School who has written about legal issues involving appropriation art, shared the blogosphere’s view that the business with the bookends made Mr. Koons look a little silly. But he said that artists and their heirs had become much more protective of their copyrights since “the explosion of ancillary merchandise,” including postcards, posters, calendars, umbrellas and coffee mugs sold in museum stores and elsewhere.
Andy Warhol, for example, often used other people’s photographs as sources for his paintings, prompting complaints from several photographers; the disputes were settled out of court. But today the Andy Warhol Foundation for the Visual Arts vigorously protects its copyrights when it comes to commercial merchandise.
If “you decide to create a calendar with a bunch of well-known Andy Warhol images,” Mr. Landes said, “you’re going to be sued for sure.”