A screenshot of the scene in the NRA video that uses Sir Anish Kapoor’s “Cloud Gate” for roughly a second. (screenshot by Hyperallergic)

On June 19 of this year, artist Sir Anish Kapoor, a knighted and “renowned visionary sculptor,” filed a copyright infringement claim in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the National Rifle Association (NRA) used a fleeting image of one of his sculptures without permission in a video in order 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.”

The NRA video, versions of which have been on YouTube since April 7and June 30of 2017, is alternately titled “Freedom’s Safest Place,” “The Violence Of Lies,” and “The Clenched Fist of Truth.” It features commentator Dana Loesch presenting what appears to be a critique of American liberalism and calling on NRA members to “fight this violence of lies with the clenched fist of truth.” For a second at the 0:17 mark, it shows a snippet of black-and-white footage of architecture, nature and crowds milling around Sir Anish’s “Cloud Gate” (2006).

Normally we would have another run-of-the-mill copyright and appropriation dispute concerning art. However, what is a bit unusual about this dispute is how Sir Anish chose to voice his politics and disagreement with the NRA by availing himself of US Copyright law. Whether Sir Anish should leverage a law meant to foster and incentivize creativity and debate to instead silence and censor speech is the question before us. Put another way, does US Copyright law grant a copyright owner the sole and exclusive right to control how their copyrighted work is used?

In general, the answer is yes. Under the US Copyright Act of 1976 (the Copyright Act), the owner of a copyrighted work has, among other rights, the exclusive right to (a) make and authorize reproductions of the work, (b) make and authorize derivative works based on the copyrighted work, (c) the distribution of copies of the work by sale, rental, lease, lending, or transfer of ownership, and (d) publicly display and authorize the public display of the work.

The Copyright Act does not, however, grant a copyright holder the right to keep a third party from using the copyright holder’s work based on the political nature of that third party’s speech. The reason for this is found in fair use doctrineof the Copyright Act.

Established primarily to address constitutional and free speech concerns under the First Amendment, fair use allows for certain exceptions as to how copyrighted works may be used by third parties. The fair use doctrine allows for certain uses of a copyrighted work without consent of or notice to the copyright owner for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. Whether any given use constitutes “fair use” is evaluated on a case-by-case basis using the following four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work (i.e. how factual or fictional is the copyrighted work), (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. These factors are non-exclusive.

Ordinarily, most copyright infringement cases would hinge on a thorough fair use analysis, but there is another defense to a copyright infringement claim that the law calls de minimisuse exception, where a court does not go through a full fair use analysis because the amount of the material copied is so minimal.

De minimisin law is a shortened version of the Latin phrase “de minimis non curat lex,” which basically means “the law does not concern itself with trifles.” When applied to copyright law, de minimismeans that courts are not going to concern themselves with trivial copying.

Built into copyright’s substantial similarity inquiry, a de minimisanalysis looks at both the amount and character of the copying through the eyes of the “average lay observer.” As with other copyright disputes, there are no bright line rules and the questions at hand must be decided case by case. Imperfect, perhaps, but the de minimistest serves a vital function, articulated best by federal appellate judge Pierre Leval, “Parents in Central Park photograph their children perched on Joséde Creeft’s Alice in Wonderland sculpture … When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.”

The Copyright Act also does not stipulate that a third party must first ask for permission before raising the fair use defense. In fact, Sir Anish’s insistence that he would “never have granted [the NRA] permission” to use his work for the NRA’s video is precisely why fair use exists. Imagine if an art critic was writing a devastating and acerbic critique of an artist’s paintings, and that same art critic needed to illustrate her argument with images of the artist’s paintings. It’s not far-fetched to believe that not only would most artists not grant that critic permission to use images of the paintings, the artist would most certainly not provide the critic with high-resolution images of the paintings.

Sir Anish’s complaint alleges that the NRA never asked Sir Anish for permission to use a fleeting image of Cloud Gate and that Sir Anish “never granted” permission, “and never would have granted it.” The “no permission” argument was put to rest in 1994 by the United States Supreme Court in the famous copyright infringement case, Campbell v. Acuff-Rose, where rap group 2 Live Crew appropriated Roy Orbison’s song,Oh, Pretty Woman. 2 Live Crew kept much of the underlying music but flipped Orbison’s wholesome and tender lyrics such as “Pretty woman stop awhile, Pretty woman talk awhile, Pretty woman give your smile to me, Pretty woman yeah, yeah, yeah, Pretty woman look my way” to irreverent and bouncy lyrics such as, “Girl, you know you ain’t right, [Two-timin’ woman] You was out with my boy last night, [Two-timin’ woman] That takes a load off my mind, [Two-timin’ woman] Now I know the baby ain’t mine.” 2 Live Crew asked for and was denied permission to use Orbison’s song. The U.S. Supreme Court unequivocally stated, “If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.”

It is perhaps more interesting if I let the reader assess for herself how and whether the NRA’s fleeting use of Sir Anish’s sculpture is fair use or de minimisuse. I would only add that, among other factors, we should keep in mind that the NRA’s video incorporates Sir Anish’s sculpture for a fleeting moment, appearing for one second or less, and appearing right at the time that the video narrator articulates that “they use their ex-president to endorse the resistance … ,” which of course refers to President Obama (the ex-president with past and present ties to Chicago). The use also appears to be in line with the NRA’s video’s commentary and criticism that “they,” presumably liberals and progressives, use certain strategies, persons, and institutions to perpetuate their “violence of lies.” Also, Sir Anish’s sculpture does not appear solo. Rather, it appears, as with other structures and landscape shots within the video, surrounded by buildings, trees, and blurred and moving images of individuals gathering en mass, presumably to “resist.” Furthermore, in a de minimisanalysis, we must keep in mind that the “average lay observer” is not an artist, curator, art historian, art theorist, art critic, or art lawyer, for that matter, but rather the “average lay observer” is a garbage collector in Raton, New Mexico or a gas station attendant in Monroe, Louisiana.

Lastly, we must also keep in mind that by the time the first NRA video aired on April 7, 2017, Sir Anish had already made public his criticism of President Trump by creating a “protest” artwork poster riffing on artist Joseph Beuys, “I Like America and America Doesn’t Like Me,” written in pseudo Antiqua-Fraktur font commonly associated with Nazi German media. According to an Artnet article of February 1, 2017, Sir Anish articulated, “‘I call on fellow artists and citizens to disseminate their name and image using Joseph Beuys’ seminal work of art as a focus for social change,’ said Sir Anish in a statement. ‘Our silence makes us complicit with the politics of exclusion. We will not be silent.’” The NRA’s use of Sir Anish’s own artwork to critique and comment on Sir Anish’s own political criticism of President Trump would not be farfetched.

Taking advantage of First Amendment protections of political speech, it is quite plausible that the NRA is appropriating content it deems necessary to make its point: That in the United States, the “liberal media” and certain cultural institutions, including some artists and artworks, function to propagate lies and hateful speech against the NRA, gun owners, and those that believe in the Second Amendment to the United States Constitution.

Perhaps what this case elicits is the ever-present question in political and democratic life: Whether this dispute is for public debate or for a court of law. Ironically, Sir Anish has already highlighted his employment and enjoyment of First Amendment guarantees when he voiced his dissent and opposition to President Trump’s election through his “protest” poster and his open letter against the NRA’s use of Cloud Gate. This same open letter was picked up by major media outlets such as The Washington Postand The Guardian, and thus exhibits how personalities like Sir Anish already enjoy a privilege of access to disseminating channels that many other members of the public do not enjoy. In essence, this dispute might just remind us of our civic duty to engage in public dialogue instead of hastily relying on courts of law at the cost of tax-payer money.

Sergio Muñoz Sarmiento is an artist, writer and arts lawyer interested in the relationship between art and law. He currently teaches contemporary art & law at Fordham Law School. You may follow his...

24 replies on “Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA”

    1. Like hell it’s bizarre. Even when the publication isn’t idiotically slanted your “monitoring” critical posts by deleting them is proof enough of the fanatical agenda you pathologically promote. Also, you are dumb as brick and hated in the art world.

    2. I disagree with your comment. Admin user is simply pointing out that the article is balanced and as an artist who reads Hyperallergic regularly it is clear that the majority of the articles are clearly biased towards the left. What might be more useful is to find a way to discuss this bias, rather than dismissing someones comments as bizarre

      1. Anonymous comments are against the commenting guidelines. Rules are universal. Reality is biased, according to the White House. We’re not going down that rabbit hole.

        1. It would make more sense for right-wing leaning visitors of the hyperallergic website to study the relentless efforts of pretty much every right-wing parties ever to diminish, appropriate, vandalize, destroy, forbid, control, neuter, or stigmatize art in general and artists in particular.

  1. But since this video is an advertisement for the NRA, doesn’t that make the fair use defense invalid? My understanding was that Fair Use was only for commentary or transformation, and normally couldn’t be applied to commercial exploitation of a trademark/copyrighted artwork or product.

  2. But since this video is an advertisement for the NRA, doesn’t that make the fair use defense invalid? My understanding was that Fair Use was only for commentary or transformation, and normally couldn’t be applied to commercial exploitation of a trademark/copyrighted artwork or product.

  3. But since this video is an advertisement for the NRA, doesn’t that make the fair use defense invalid? My understanding was that Fair Use was only for commentary or transformation, and normally couldn’t be applied to commercial exploitation of a trademark/copyrighted artwork or product.

    1. Dear Plynn: You bring up good questions. Keep in mind that the commercial factor does not gut how or why the underlying work is used. The case I mention, Campbell v. Acuff-Rose, was also about and noted that the commercial nature of the appropriated use does not invalidate a fair use defense. I don’t really see the NRA video as advertisement, but rather a political plea to their base and members to rally against what they, the NRA, calls “the violence of lies.” There are also other visual art examples, such as Blanch v. Koons, where the court found fair use even though Koons exhibited and sold the works in and through commercial outlets. Great question!

      1. For the Blanch v. Koons case, I’ve thought fair use was allowed because the commercial aspect was subordinate to the primary purpose of the work, which is to make an artistic/cultural statement (everybody that hate Koons just burst out laughing). So, the work wasn’t made primarily for commercial gain, it was created for transcendent artistic goals (more laughter) which allowed for fair use.

        I suppose the commercial nature of the NRA ad is as subject to judgement as whether Koons’ work is primarily art or commerce. I see the NRA video as very much a commercially-focused product. They are trying to create and cultivate fear so they can sell more memberships. The video is also intended to spur the sales of more guns, which also benefits the NRA as as they also rely on the membership and support of gun vendors. So, I see this as clear commercial exploitation of Kapoor’s work – they used its immediate recognizability and stature as a symbol of Chicago to advance their sales pitch.

  4. Sergio, I would be interested in hearing your thoughts on whether a VARA/moral rights claim could have or should have been asserted. I remember reading this complaint and feeling surprised to see there was only one cause of action asserted: copyright infringement. A moral rights claim could be one way to get around a strong fair use defense to copyright infringement. I’m recalling the Wojnarowicz decision, in which the American Family Association cropped and rearranged portions of Wojnarowicz’s work for a pamphlet on defunding the NEA. What would have been fair use instead became alteration, mutilation, and modification of Wojnarowicz’s work under the New York Artists Authorship Rights Act.

    1. Dear Former Student FLS:

      Great questions and thoughts. Two things to keep in mind: (1) In the U.S., federal moral rights/VARA only apply to the actual work of art, so federal moral rights under U.S. law here, (2) Sir Anish brought this case in an Illinois court of law. The case you mention, Wojnarowicz v. AFA was brought in New York, where Wojnarowicz took advantage of New York’s Artists’ Authorship Rights Act under N.Y. Cultural Affairs Law. Not sure if Illinois has such a law. But even assuming the Wojnarowicz decision was correct, this type of state law, as it pertains to copies, may in fact run against both U.S. Copyright law and the First Amendment. Great thinking!

  5. Your summary of intellectual property law, specifically the “fair use” exception, is thorough and accurate. What you fail to recognize is that some litigants pursue lawsuits for reasons that do not include a hope of prevailing in their legal claim. The NRA is known for suing people/entities to tie up their opponent’s resources even when they have no justiciable right. That may be the artist’s intention, too—a bit of fighting fire with fire.

    1. Hi Sandy, and thank you for your comments. I do of course recognize that there are other factors other than “legitimate” ones that cause a plaintiff to pursue litigation. In this case I think Sir Anish wishes to use this lawsuit as his form of protest against the NRA and political ideologies he sees as “repulsive.” I assessed the strength of his claims and thus assessed whether this was the best use of resources for political opposition. I don’t think so, for him or for the U.S. taxpayer. Interestingly, the NRA video is quite strong in aesthetic and artistic terms. Perhaps this is something Sir Anish should pay attention to.

      1. In a previous article you guys wrote, an angle that I thought was particularly interesting and probably more valid than the copyright infringement angle, was the “distress” caused to the artist by the use of their work in the NRA video. Given that Kapoor has been known to do psychoanalysis for years, I think it’d be easy to prove a psychological impact and see it as intention to harm a vocal political opponent.

  6. I don’t think this is only a fair use issue. It’s a derivative works issue. The NRA videos do not use the sculpture; they use images of the sculpture in space, in the public space in which it’s viewable by everyone. In the converse of Bridgeman, where 2D images of 2D works are (probably; not really tested) not copyrightable independently of the original, this is a 2D, moving image representation of a 3D static work. I don’t know if any court will care about that logical argument, but I’m sure any court will be aware that allowing copyright to prevent the reuse in moving pictures of public artworks in public spaces would be tantamount to disallowing any motion picture photography anywhere. E.g. one could copyright the look of a Toyota Camry.

  7. It seems to me that the NRA wins either way. Either they win in court (as I imagine they will), or, if they lose, that turn of events will feed the right-wing-populist meme of persecution and censorship by coastal elites. Regardless, I suppose we must keep the culture war going so as to continue to avoid discussion of serious issues of imperial war, militarization of the police, deep surveillance, and radically increasing inequality of wealth and the growth of plutocracy. If only gun control extended to our Great Leaders!

  8. I think the de minimus discussion is particularly interesting in this case:
    “Furthermore, in a de minimis analysis, we must keep in mind that the “average lay observer” is not an artist, curator, art historian, art theorist, art critic, or art lawyer, for that matter, but rather the “average lay observer” is a garbage collector in Raton, New Mexico or a gas station attendant in Monroe, Louisiana.” I think it’s specifically the recognizability of Cloud Gate and its association with Chicago by people well beyond the art world that the NRA is counting on. The maker of the video was looking for a recognizable icon that would be associate with President Obama without showing his image specifically. It seems this alone would be enough to dismiss a de minimus argument and require a determination of fair use. Thanks for the excellent article.

    1. Hi Jennifer: Interesting, and that’s what I argued in my article, that the “Bean” plays a role in the video. But, I’m not sure the “recognizability” factor would be enough to take it out of de minimis. We’ll see.

  9. Thank you for the in-depth article. I find that your take on this same issue on your personal website takes sides more directly against Kapoor, with its title “Anish Kapoor wants to use copyright to censor speech”. I am curious to understand how much of your own opinions end up in each platform’s articles.

  10. I’m an artist, not the average gas station attendant, so of course I will have a different perspective… perhaps one of more experience in the arts, city planning and education, not necessarily a blind bias. We can speak of laws and fair use, but I can contribute my creative point of view. The NRA is taking advantage of art, public spaces and context to describe that things are going well, safe, and that their members are contributing to civilization in a meaningful way. The artist’s work is serving as a symbol of this stability…. it’s being appropriated and sending a disheartening message which is contrary to the artist’s philosophy. This situation might in the end lead artists such as Kapoor away from sharing their art in the public… sophisticated art my leave our plazas and instead we’ll have bronze ponies and puppies. Do I think he should win this case… not sure… but I’m glad he has pushed us to question our citizenship and art.

  11. The bigger question is why anyone deems a bean-shaped hunk of aluminum to be “art”, and why Kapoor is considered a “sculptor.” Whatever it may be, “Cloud Gate” is certainly no sculpture. Michelangelo and Bernini were sculptors. Kapoor is a fashionable po-mo fraud and purveyor of kitsch.

  12. I’m not a lawyer, but geez, this art is in a public space, millions of photos are taken of it every year, so this is stupid. The artist lost all control the minute it was placed in Grant Park.

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