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Freakonomics take on the Artistic Copyright Issue

February 22nd, 2011

February 17, 2011, 12:00 pm

What Can the Jeff Koons Lawsuit Teach Us About Copyright Law? A Guest Post

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property. They have been guest-blogging for us about copyright issues. This week, they write about a recent Jeff Koons controversy.

Jeff Koons Turns the Table on Copyright Law
By Kal Raustiala and Chris Sprigman

Jeff Koons is an American artist who produces sculpture, paintings and controversy (and not necessarily in that order).  Koons specializes in the artistic reproduction of kitsch — for example, he took this photograph by Art Rogers of two people holding a batch of puppies as inspiration for a similar-looking sculpture.  Working in this vein has gotten Koons sued several times for copyright infringement.  Koons lost the lawsuit filed by Rogers, and lost again in two other suits involving different works.

Recently, though, Koons tried to turn the tables by filing a suit against Park Life, a San Francisco boutique that sells, among other interesting knick-knacks, these balloon-dog-shaped plastic book ends.  Koons claimed that Park Life infringed the copyright on Koons’s massive balloon dog sculptures, which can be seen in many major museums around the world.

Koons’s claim was pretty ridiculous.  “As virtually any clown can attest,” Park Life’s lawyer wrote to the court, “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.” And the judge in the case agreed.

What was Koons thinking? Maybe Koons was mischievously attempting to point out how absurd copyright law can be — after all, he’s been copyright’s victim on three occasions.  But whatever his motivation in filing suit, it points out a larger problem with copyright law.  Copyright grants limited property rights in original works of creative expression.  It does so to induce creators to produce new works, while at the same time maintaining the widest possible opportunity for people to experience those works.  Copyright is not an unlimited right, however.  It is carefully hedged — there is no copyright, for example, in ideas, and there are many uses of copyrighted works that qualify as fair and therefore do not violate copyright.

But that’s the law on paper. The real world is different.  As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners — at least those who have registered their works with the Copyright Office — to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal.  The cost of a lawsuit — even a lawsuit that seems unlikely to succeed — is just too great, unless the defendant is very, very sure they will win.

As it turned out, Park Life was very, very sure, and so they defeated Koons. But that is a rare story. And as a result, copyright often exerts a “chilling effect” on legitimate conduct that some copyright owners may decide they don’t like.  The result is an uncomfortably large number of frivolous copyright claims, like Koons’s.  Some of the best — i.e., the worst — examples of this can be found at an aptly-named website — chillingeffects.org.  Here, for example, is the firm that owns rights in the infamous “Barney” children’s television character threatening a website which uses images of Barney as part of a parody — which is recognized as fair use.  Threatening letters like this may fail before a judge. But if they succeed in making the defendant afraid to fight, they’ve unfortunately done their job.