Anish Kapoor, “Cloud Gate” (2006) (photo by Ines Hegedus-Garcia, via Flickr)
A storm is brewing over “Cloud Gate.” Anish Kapoor is suing the National Rifle Association (NRA) for using an image of his iconic public sculpture in Chicago, affectionately known as “The Bean,” in a particularly inflammatory commercial released last year. The lawsuit, filed yesterday in US District Court in Chicago, accuses the NRA of copyright infringement and seeks a jury trial.
“Despite being expressly informed on multiple occasions that the use was unauthorized and was causing extreme distress to [Kapoor], [the NRA] continued and continues to display the Infringing Video,” the complaint states. “[Kapoor] is therefore entitled to statutory damages for willful infringement in the amount of $150,000 per infringement, the number of infringements to be determined according to proof at trial.” Exactly how each $150,000 infringement should be calculated is unclear from the terms of the complaint, but as of this writing, two versions of the video on the official NRA YouTube page have collectively racked up about 4.75 million views. (If the case goes to trial, Kapoor prevails, and each viewing of the videos is deemed an instance of infringement, the NRA would owe him $712.5 billion in damages.)
In March of this year, Kapoor wrote an open letter to the NRA, criticizing the organization for its practices in general and its use of “Cloud Gate” in its commercial specifically. “The NRA’s nightmarish, intolerant, divisive vision perverts everything that ‘Cloud Gate’ — and America — stands for,” he wrote. His lawsuit adds that he “was shocked and outraged to learn that his sculpture had been used by NRA to support its despicable platform of promoting violence, private ownership of all manner of firearms in the United States, including military assault weapons, and using its money and political power to block any kind of meaningful gun control.”
Anish Kapoor’s “Cloud Gate” appears in a National Rifle Association commercial (screenshot by the author via YouTube)
The NRA video, versions of which have been on YouTube since April 7 and June 30 of 2017, is alternately titled “Freedom’s Safest Place,” “The Violence Of Lies,” and “The Clenched First of Truth.” It features conservative commentator Dana Loesch presenting a caricature of American liberalism and calling on NRA members to “fight this violence of lies with the clenched fist of truth.” For about a second at the 0:17 mark, it shows a snippet of black-and-white footage of crowds milling around “Cloud Gate.”
Kapoor’s complaint claims that while the actual sculpture belongs to the City of Chicago, which commissioned it, he registered “Cloud Gate” with the US Copyright Office in January 2016, and that the NRA should therefore have requested his permission to use an image of the work. The lawsuit alleges that the NRA “has obtained direct and indirect profits it would not have otherwise realized but for its infringement of [Kapoor’s] copyrighted work, including but not limited to increased membership dues following the publication of the infringing video.”
The NRA has not responded to Hyperallergic’s request for comment.
Though this appears to be the first time Kapoor has taken legal action over the distribution of an image of “Cloud Gate,” he did threaten to sue Chinese authorities over a rather flagrant copy of the sculpture was unveiled in Karamay in 2015.
In Sweden, at least, it’s well established that artists retain copyright to their works that are displayed in public, as a protection against unforeseen future uses. For me, the issue of whether you can selectively claim this right, depending on the case and use, is the real question, though a rather more mundane and legal one.
I think Anish may be picking some low hanging fruit to demonstrate that he is, indeed, a compassionate and righteous man. No need Mr. Kapoor; you are a fine artist and a great business man……………….you do not need to pretend to be a saint.