Jamie Alexander and Derek Song were surprised in late December of last year when they received a letter from the New York law firm of Jones Day, which represents Jeff Koons, LLC. Their San Francisco retail store and gallery, Park Life, had never attracted the attention of the art world’s heavy hitters before, but now, one Peter D. Vogl had sent them a cease-and-desist letter calling for the immediate cessation of their sale of balloon dog bookends. Apparently the 10.2” matte plastic pooches were threatening the Koons art empire and potentially confusing customers who are more accustomed to spending a lot more money on ten foot tall hi-gloss steel versions of the same species.
On the Park Life blog, Alexander wrote:
Wait, I’m confused, isn’t his ENTIRE FUCKING CAREER based on co-opting other peoples’ work???? So going forward, just so you know; Jeff Koons owns all likenesses of balloon dogs.
The expletive complemented the anger expressed in Alexander’s headline, “Jeff Koons sends in his Goons.” In the weeks that followed, jokes of similar sentiment abounded, as headlines like “In a Twist” and “Keep Your Paws Off Our Balloon Dogs” ricocheted around the blogosphere and comment boards lit up sprinkled with the big h-word, “hypocrisy.”
Meantime Park Life wasted no time and began working with Jedediah Wakefield of the San Francisco law firm of Fenwick and West. Taking the case pro bono, Wakefield filed a declaratory judgment against Koons on January 20, 2011. The suit, written in sardonic legalese, argued that Koons’ demand was meaningless.
Opening his “prayer for relief” by whimsically invoking the common sense of the court, Wakefield wrote:
As virtually any clown can attest, 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.
Wakefield’s unique sense of humor, in fact, so saturates the document that it stands a testament to sarcasm close to Jonathan Swift’s “A Modest Proposal.” Identifying Koons as a “retired stock broker,” Wakefield patiently explains the history of balloon sculpture in order to clarify that the tradition “predates” Koons’ sculptures.
Results were swift as Koons’ lawyers immediately backed off. “Most cases settle, but this was remarkably fast. The other side must have realized it had a dog of a case,” Wakefield explained.
On February 2nd, Jamie Alexander updated Park Life’s blog “It’s over. Jeff Koons and his threatening lawsuit have retreated and dropped any and all pursuit of Park Life.”
As is often the case when a Goliath swats at a David, support for the underdog drives sympathy for and interest in the underdog — sales of balloon dog bookends soared during the time the story was circulating.
With a headline reading “All Bark and No Bite,” Kate Taylor of the the New York Times, which reported on the case only weeks after the topic had already become old news in the blogosphere, joked, “Clowns everywhere can breathe easier.”
Curious and Curiouser
But can they? This certainly was not the first time a blue-chip appropriation artist had been snagged in a chortle-worthy hypocrisy bust. The balloon dog debacle is just the latest in a string of increasingly ridiculous cease-and-desist cases in the art world.
In March of 2009, Shepard Fairey’s lawyers took designer Larkin Werner to task for using the trademarked word “OBEY” on some of his Steeler Baby merchandise. The Steeler Baby, a kewpie doll wearing a knitted black and yellow uniform, was born in 2005 during the NFL playoffs. Werner conceived of him as a campy in-joke for Steelers fans, then gave him a website and a very successful 2,000+ friends Facebook page. At steelerbaby.com, one can watch the doll say various things, one of which was the ominous, “Obey Steeler Baby,” which caught on and became a fan favorite.
When Werner began marketing Steeler Baby items on CafePress, he used the word ‘OBEY’ on some of the items. That’s how he caught the eye of Fairey’s legal team, which then sent its cease-and-desist letter to CaféPress. CaféPress then removed the offending items and informed Werner of the embargo.
Like Alexander and Song, Werner marveled at Fairey’s straight-faced legal action:
As a graphic designer who likes to think he’s up on street culture I was certainly aware of SF and his Obey Giant project. But I never thought for a moment that Steeler Baby was in the spirit of, or taking advantage of, that work in any way — and certainly not to deceive anyone. A kewpie doll in a vintage knit Steeler suit ordering you to obey him? Seriously?
Unlike Park Life, Werner conceded to the removal of his merchandise, but he made sure the press got an earful of his complaints against the street artist. I asked Werner if Steeler Baby had contacted a lawyer or corresponded with Justin McCormack (licensing partner for Obey Clothing) in order to respond to the charges.
“Lawyers, “ he says, “were never involved. Steelerbaby figured he’d let their own bad timing, bad judgement and bad PR settle it. Besides which he didn’t have a ton of cash to throw at ‘principle.’”
So after Werner granted several interviews garnering lots of negative press for Fairey, and after he delivered a very charming slide show at a Pecha Kucha event in Pittsburgh, explaining who Steeler Baby is and why Fairey’s claims against him were screamingly hypocritical, Fairey’s lawyers dropped the case.
“I had always assumed that it was his lawyers and not SF that had ordered the C+D. He always seemed like a nice guy in interviews and such, so it did pain me a bit to play the hypocrite card. But that’s what is was,” Werner says.
CafePress has since restored Steeler Baby’s Obey items on the CafePress site and Werner holds no grudge against Shepard Fairey, stating that “When Shepard Fairey had his opening at the Warhol Museum here in Pittsburgh a little while back he did call up Steelerbaby to apologize, and even invited SB to the opening to say so in person.”
Werner also went on to attest to Fairey’s sense of proportion, stating, “He said when someone finally got around to showing him the site his response was, ‘You’ve got to be f#cking kidding me.’”
What Were They Thinking?
So just what are these legal teams thinking when they threaten babies and balloon dogs with legal actions? Suspecting that these maneuvers were not carefully thought out, I asked Ron Coleman, a self described “commercial litigator, business attorney and IP maven” and author of the blog, Likelihood of Confusion, if perhaps the cease-and-desist letters were cranked out by interns and he agreed that this is likely. “Certain law firms and other agencies hire rooms full of college students to do this. There are policies in place and ‘triggers’ — as well as budgets — that determine how far each ‘file’ will go,” he says.
Indeed, a quick Google search will show that doing IP and trademark research, and sending out cease-and-desist letters, are a regular part of a legal intern’s job description. These letters are sent out with no greater strategy in place than to cast a wide net in hopes of catching all potential offenders.
We are, it may be pointed out, living in a time when diligence pays off to such a degree that it is not wise to take any risks at all.
Jason King, an NYU Professor and artistic director of the school’s Clive Davis Department of Recorded Music, told NPR’s Zoe Chace, “There’s a kind of ubiquity of unsourced images out there,” speaking of our times as the “Flickr era,” where artists can “borrow images, in a kind of grab bag aesthetic, from anywhere they want.”
The ease and, let’s face it, the sheer amount of inspiration are tempting.
In a recent case, the pop culture fashion photographer Dave LaChapelle, who is himself a famous miner of pop culture and a cultural satirist (though it is well-know that he takes his art more seriously than he probably should) has sued pop music star Rhianna for echoing eight of his photographs for the music video of her song “S & M.” Though the suit, asking for $1 million dollars in damages, describes Rhianna’s video as a “willful, wanton and deliberate” infringement of LaChapelle’s copyright, that’s just standard legalese. LaChapelle told the press that the suit against his friend and colleague “RiRi” was a business matter with no personal enmity involved at all.
Sometimes an artist may very well file a suit only to stake a claim — to pee on the post that marks the artist’s territory. As the ability to poach artwork with ease grows, so, along with it, does the necessity of producing, what is now being termed, a “chilling effect” to strike fear into the hearts of would-be offenders.
Even if one disagrees with LaChapelle that his own compositions are original and worthy of copyright protection, the fact is that in filing suit, LaChapelle wins strategy points, and possibly some dollars by practicing that doggie strategy: he’s peeing on the post to mark “his” territory, irregardless of his own borrowing.
The thing to keep in mind in many of these cases is that what looks like hypocrisy in the broad view, may also be good business when it comes to trademark and copyright maintenance. An artist (or corporation, or artist run corporation) must keep the brand in the forefront of people’s minds, clear and unsullied by distractions.
It may be small comfort, but it is rare for things to proceed very far before the Steeler Babies and balloon dogs are weeded out from the Rhiannas. Though it only takes a second glance to see that Larkin Werner and Park Life were not infringing on copyrights, it is far less obvious in the case of Rhianna’s video.
If she does not settle, the court will have to sort this one out. But win or lose, by filing suit, LaChapelle ensures that the public will recognize Rhianna’s S&M video images as copies of LaChapelle. This helps, not only to add value to LaChappelle’s branding, but to further insure the value of his future work.
Bad Boy Meets Bad Boy
Sometimes an artist who sues looks like an ass despite the fact that an obvious infringement has taken place. Whereas LaChappelle really is practicing good business (shall we call it strategic hypocrisy?) by suing his friend Rhianna, Damien Hirst, by most accounts, was practicing sheer pig-headedness.
In November of 1998, Damien Hirst himself took on 16-year-old Cartrain, a graffiti artist who was using images of Hirst’s “For the Love of God” (2007) sculpture in his collages which he was then selling on the website, 100artworks, an online gallery.
When faced with a cease-and-desist letter, from the Design and Artists Copyright Society (Dacs), 100artworks took Cartrain’s work down and sent their remaining inventory to Hirst.
Hirst then followed up with a shakedown, demanding that Cartrain hand over all profits derived from sales of work sold previously.
Oft times the question is not merely, “Is this copyright infringement?” Cartrain’s work pretty obviously is since the courts will look at the percentage of an image that is used in a derivative work (yes, even collage) and will use that to evaluate copyright infringement. In the case of Cartrain’s collages the Hirst skull figures pretty much in total, and, mind you, with that very original pavé composition on the forehead (very clearly Hirst): so it’s pretty likely a court would rule against Cartrain.
Still, in this particular case, the question becomes, why is the artist enforcing his copyright?
When an iconic appropriation artist, who has in the past, secured large awards for blatant copyright infringement, sues a young emerging street artist for doing the same, the issue looks like bald hypocrisy, and possibly very bad business strategy.
Cartrain’s art is (almost without a doubt) infringement. But, so is Hirst’s, in some cases. His “Hymn,” for instance, famously copied the Humbrol toy company’s Young Scientist anatomy kit by: though he settled out of court with the company and went on to sell the work to Charles Saatchi. In other cases, Hirst’s work has appeared to be so largely derivative that it is safe to say it has a good deal in common with the stencils and shared iconography of street art.
If Cartrain’s work were any kind of threat to the Hirst empire, then the cutthroat approach of sorting the boy out with legal pressure would at least look like a wise and ruthless business decision, similar to LaChapelle’s. But no one could make any sense of Hirst’s failure to embrace a fellow satirist who, in no way, could effect the senior artist’s brand.
Though the pressure for Hirst to give up his war on Cartrain was relentless, none of the press accusations of bullying, neither redragtoabull.com, which lent Cartrain the support of other appropriation artists who created satiric works of flat out infringement, nor the tweeters who satirized Hirst with hashtag #hirstisacock, could make the multi-million-dollar art king back off his humorless pursuit of the London street art bad boy.
Asked in a Hyperallergic e-mail interview if he thought Hirst would have pursued him if the collages weren’t mocking the great man himself, Cartrain responded via direct message, “I think Hirst wanted to destroy the collages so no one could ever see them … If he has set fire them by now he could keep the ashes and put them in a little urn … Sort of thing I think he might like.”
So will he keep on using appropriated images? Cartrain indicates that he will, telling us: “After the whole copyright case with Hirst and the diamond skull head … it is now fashionable to incorporate Hirst’s skull into collage.”
Not the good little schoolboy the press had tried to make him out to be (in fact a recent scuffle with police, in which Cartrain claims to have been injured, ended with charges of assaulting an officer), Cartrain responded to the confiscation of his works by visiting Hirst’s 2009 show at Tate Modern and lifting a set of “vintage” art pencils from “Pharmacy,” a multi-media installation.
Holding the pencils for ransom, Cartrain issued a ransom note, via street posters:
For the safe return of Damien Hirst’s pencils I would like my artworks back that … Hirst took off me in November … Hirst has until the end of this month to resolve this or on 31 July the pencils will be sharpened.
Cartrian was arrested. The way he tells us:
The police came busting through my door when i was not at home and arrested my father for “harboring the pencils.”
“I was arrested three days later ‘By appointment.’ They took the pencils back after i had made some artwork with them. So I no longer sign my art work with these valued objects.”
Upon Cartrain’s arrest, police claimed that he owed something akin to $17 million dollars in charges.
Now here’s where things get really strange: Cartrain was released on bail and then all charges were suddenly dropped and Cartrain was again free to go forth and create his usual mischief. More strangely, the press trail grows ice cold, with no one pursuing the story after that.
When asked what went on in between his release from jail and the charges being dropped, Cartrain dodges,
The charges were dropped… in the end i never had to pay any fines… Which was great news.
As you might expect, Hirst’s persecution of his fellow gadfly has only served to make him look villainous and to draw attention to Cartrain’s career.
“This year is going to be pretty big,” says Cartrain, adding mysteriously, “I have lots of things planned but they can always go wrong… so right now I am just taking it one day at a time… I am trying to plan a US show this year as I hear I am making quite a name out there.”
I find it humorous when seemingly “punk” or “street artists” become this famous they can afford a legal team so big that they have a dept. of interns sniffing out their client’s imagery online and elsewhere. To retain those kinds of services costs a lot of cha-ching (even if interns are free, the legal fees are not). To protect said artists from whom exactly? Other artists who appropriate work, just like they do/did? Or claim they have rights on things like balloon dogs, every day objects or a word like OBEY? Even in the case of LaChapelle photos the whole S&M “down on your knees w/ a dog leash and a whip” pose was done long before LaChapelle’s photo, and his work seems to me a direct inspiration from Helmut Newton. LaChapelle borrows, we all borrow.
Suing a street artist with little cash is completely ridiculous, and frankly Hirst, a) you hardly need the money and b) take a joke. I just witnessed Hirst bending over for his collector in Davos like a tool. If he has become all of this; then he’s no longer an artist with compelling ideas but a just a cock-sucker (am I aloud to say that on Hyperallergic? you can bleep that if necessary). Hirst was once that kid running around, making his art, being a prankster. His ego needs a giant check. They all do.
Excuse me while I go find out if any of Velázquez’s ancestors are still around. Once they see my new portraits I’ll expect a nasty-gram imminently.
Totally seconded. I wish more artists could keep the prankster mentality farther into middle age and established status. Maurizio Cattelan, anyone? There’s a reason everyone is after that guy.
Everything is an appropriation of everything other appropriation. I was amazed at how many artistic strategies I found in medieval art that were directly echoed by contemporary conceptualism. The best remixer comes out on top, whether you think the art’s “original” or not.
those with the higher priced lawyers always win…great piece!
So I just discussed this at length with artist John Powers, who basically said Hirst is pulling the same stunts he always has – and basically, Cartrain is on the map because of this publicity. Agreed. But is Hirst just creating another prank whereas he threatens a young artist w/ $17m and gets his own publicity alongside Cartrain, but never intends to do anything? Is there some ulterior motive to use this whole situation as a stunt? Perhaps Hirst is just spinning the press, like he spins everything else. Now I am even more curious.
If Hirst’s lawsuit was really as humorless as the post points out, I can’t see it really being a faux-straightfaced prank. It just seemed like a nasty thing to do to some random kid. Does Hirst really need any more publicity than he has in the mainstream press? I mean is really that egotistical? He could have just let the kid make his stuff.
Kyle, I’m in your camp. Arresting Cartrain’s father and then dumping the kid himself in jail (for stealing pencils from a Hist sculpture) is pretty harsh. A $17m lawsuit? That kind of thing is expensive just to put forth…
But I admit, the last paragraph of this piece just gave me pause:
Just found this, which features one hell of a lot of balloon dogs. Silly stuff. But where’s teh Koons legal team? http://artstormer.com/2011/03/09/lift-off-paintings-by-robert-c-jackson/
In all but one of these cases I smell an over zealous litigator is the root of the problem. I imagine Koons and Hirst were just as out of the loop as Fairy was. (LaChapelle on the other hand seems like a genuine bottom feeder.) The key difference in the Hirst case is the TOTAL DOUCHE BAG COWARDS at 100artworks handed over the art to the lawyers. Hirst should not be the one derided in the press 100artwork should be. What total losers.
I’m not a lawyer, but I imagine that once the kid’s property was confiscated by the zealots a very real line had been crossed that made it very difficult for Hirst to back down without admitting wrong doing, and that Hirst was advised, by more competent and less zealous lawyers, to say nothing and just wait for the whole thing to go away. Thats my guess.
But then the kid stole something from an installation at the Tate Modern – again a very real legal line had been crossed and again that line had nothing at all to do with artistic appropriation, it had to do with confiscating someone else’s property (and doing so within the legal context of a museum). Anyone who has ever met a museum registrar can imagine the shit storm that must have caused at the Tate (makes me smile).
The last chapter, the 17 million dollar case brought and dropped, only makes sense in a Robert Rauschenberg’s Erased de Kooning Drawing kind of way. When Rauchenberg asked de Kooning for a drawing to erase de Kooning gave him one “he would really miss.” The older artist gave the younger artist something of value and doing so enriched himself. In Hirst’s case, he gave Cartrain a letter of introduction to the US art market – one that priced a box of his pencils at $17 million.
And then there’s this guy who could probably use an intern with a Cease and Desist letter. Not for the street artists but the others making a buck off his pilfered image.
@ngalai Two new words that should be part of your vocabulary. Cease and Desist. :o) http://bit.ly/gAnW9U #muchcalmerthaniwouldbe #chilldude
Thank you, designbits: very interesting little viddy.
Funny how two artists whose work has so thoroughly been based on co-opting the imagery or products of others get so hot and bothered by anyone making a pittance off of something vaguely similar to their “brands”. Fairey worst of all, given that his entire enterprise is built on using photographs by other artists (often minorities) without attribution or a share of the profits…of musicians or radical political figures to sell his generally superficial and vapid objects of commodified rebellion. Maybe he would like to give some of his cash to Andre the Giant’s estate?
In London we are used to and a little jaded by CarTrain’s obsession with publicity, for years he has compensated for years for lacking Hirst’s and Banksy’s media savvy by riding shamelessly on their coat-tails. We are also used to him being 16, he has cannily remained that age for about 6 years and there was doubt about his age right from the start.
Earlier this week I was a bit surprised to see CarTrain re-hashing his skull collages in the usual tired and tedious street art spots in London, now perhaps this little flickr of the publicity embers from his well orchestrated mutually self-serving spat with Hirst explains his re-emergence.
Give him credit though, I do like his simple but effective appropriation of the skull and other Hirst imagery this time.
In Cartrain’s defense, I think the press made the big deal about his being 16 when he was sued. I’ve seen no claims by him since then, of being 16. Nor does he try to come off as the innocent the press had made him out to be.
Parody, parody parody.
Come on people. lets keep it fun.
Ah, but you covered a key part of Hirst’s skull: the signature forehead design. You would, perhaps, win if a lawsuit were brought. Just sayn’.
I created a free online filter that built digital mosaics out of dissected Chuck Close images, but the real Chuck Close asked me to shut it down and I agreed. He emailed me in November 2010, “it may be an amusing project and many people might like it, but it is MY art that is trivialized, MY career you are jeopardizing, MY legacy, which i have to think about for my children, and MY livelihood. i must fight to protect it.”
I am making plans to relaunch my website freechuckcloseart.com 100 years after Chuck Close dies and his copyright expires.
Wait, how were you trivializing and jeopardizing his career and legacy exactly?
I scanned original Chuck Close paintings from a book and then cut the images up into a thousand of tiles in Photoshop. Users could upload their face on my website and the filter would create a digital mosaic out of the Chuck Close tiles.
The Way Back When machine has an old snapshot of the page. http://replay.waybackmachine.org/20081023165540/http://www.barcodeart.com/art/other/close.html
And my animation test using the Chuck Close filter is still on YouTube http://www.youtube.com/watch?v=D4YN_sr2GrE
That’s pretty amazing. Close is soo lame for objecting to it. Talk about old thinking.
Ha! That’s a nice little toy, Scott! REal nice.
I think there’s a nuance here that’s worth taking seriously: Close was worried, not particularly about your program, but about more egregious cases that he would not be able to defend against if he didn’t pursue all previous ones.
This actually is, in our current legal system, true. Sadly, even if Close didn’t want to shut down your site, he would be advised to by his lawyers just in case they met with a case they really DID object to.
On top of creating a chilling effect for any artists, like yourself, who will make derivative works, it also shows that the owner of intellectual property is maintaining and holding their claim.
Were you selling the service or the resultant images? If not, I wonder if a cease and desist applies to you?
Thanks for the feedback. I was not selling the service, hence the domain FreeChuckCloseArt.com
It’s still a violation if you give it away, just like Napster.
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