Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA

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.