Is a Cease and Desist About Irony, Hypocrisy or Legal Strategy?

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.”