Balloon Dogs à Faire

February 2, 2011

Jeff Koons has been pursuing an interesting course of action lately.  Koons, who is primarily known for his appropriation artwork, created a sculpture that consists essentially of a solidified form in the shape of a balloon dog.  It’s actually a very cool sculpture, exhibited at the Met in NYC.  And now?  Now he’s suing people who make balloon dog bookends.

As always, there’s a few issues here.  First, it should be noted that Koons has some experience with being on the receiving end of several infringement lawsuits.  And losing, generally (though he did win a recent one).  While people have accused Koons of some level of hypocrisy in bringing this suit, I don’t blame him – if he’s going to be harmed by the law, he ought to take advantage of it where he can.  More importantly, there is some level of distinction (if you assume Koons genuinely believes that Park Life is copying HIS balloon dog, instead of, as I will address below, the concept of the balloon dog) here – Koons historically has engaged in transformation of his appropriated works, and this seems to just be direct infringement for profit.  His motives for bringing the suit may be slightly cynical, but because of these differences (and, perhaps, because of my own basic view on the appropriateness of cynicism) I don’t see it as hypocritical or unfair.

Second, and this is really the major issue: does Koons really have a workable copyright here?  His balloon dog sculpture meets that bare minimum of originality required, it’s fixed in tangible form, so there’s no real creation issue.  Ignoring the subject matter, we have to assume there’s a copyright here.

But.  There are a couple limiting doctrines in copyright needing some thought: merger and scenes a faire.

Scenes a faire is a fairly simple concept – there are certain elements that are so integral to a conception of certain things, and in a way so generic, that you can’t copyright them.  Although you don’t have to use them, they’re kind of core.  Nazis singing in a beer hall in a WW2 movie, numbered Swiss bank accounts and ridiculous gadgets in a spy movie, three-chord structures in pop music – these are just “the way things are expected to be”.  Scenes a faire.  Now, if you were to say “balloon dog” to just about anyone, it’s going to conjure up a very specific image – the exact image Koons relied on in creating his sculpture.  Under scenes a faire, you need some fairly exacting levels of copying of this type of work for it to be infringing.  If you examine the Koons sculpture linked above and the Park Life bookends you’ll probably see a few differences.  Just at a glance, the tail is quite different (a stub versus the extended sting of the Koons work), general shape (slightly more rounded), and the angle of specific components varies between the two.  Analogous to Ets-Hokin v. Skyy, the underlying item/idea is being expressed in ways that are different enough to not be infringing.

Merger is the other applicable doctrine.  Insofar as there is only one way (or a very limited number of ways) to create a balloon dog, merger prevents the copyrighting of those expressions in order to protect the ability to express the underlying idea (a dog made from a balloon).  You can’t copyright a representation of a poker hand or a chess board.  You can’t copyright the mathematical expression of the mass-energy equivalence implied by the Special Theory of Relativity.  These ideas have limited ways in which they can be expressed, and copyright in those expressions would effectively prevent any use of the underlying ideas.  (If you don’t understand why I keep using expression and idea, you should read about the idea/expression distinction in copyright law.)  Arguably, the idea of a balloon dog merges into the expression in such a way that you can’t copyright it, or can only copyright it in very limited ways – in this sense, merger and scenes a faire reflect different aspects of the same general concern, though merger may be less applicable here insofar as (as evidenced in Ets-Hokin or looking at the two dogs side by side) there are fine gradations of expression available.

In the end, Koons probably doesn’t have a very good case here; there’s enough difference, and enough hostility to the notion of the idea of a copyright in the balloon dog shape, that his claim has to fail.  Koon’s claim in video form?

(On a final, non-legal note – I like the idea of the judge or jurors taking a trip to the Met in order to get the best possible view of the Koons work.)

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Joe Clark, in a discussion of the iPad, states:

“While people will tolerate a lot of things, what we want are beautiful things that work well. There aren’t many nonexperts who can accomplish that. Expertise needs schooling, maturation, taste, and quite a lot of attitude.

The foregoing explains why open source has nothing to teach literature or indeed any artistic creation, since talent doesn’t scale as you give more and more developers check-in access to the version-control system set up for your novel.”

Open source has a surprisingly large amount to teach literature and all forms of artistic creation – at least, if you look beyond the simplistic view of open source presented here, and if you truly examine the myth of the romantic artist, the nearly Randian ideal many embed artists and artisans within.

Everyone’s familiar with (or should be, at any rate) the notion of artist as superman – someone with a talent simply inaccessible to those around them, an individualist creator who must be rewarded for the act of creating in order to utilize their talents and whose creation comes out of their very soul.  Some people even believe it.  But these notions are questionable, at best.

First, the incentive argument: in a survey of various creative media types (I don’t have the citation handy, but it’s somewhere in the pile of paper on my desk – email if you want it), roughly 2% cited a monetary motive as part of the reason they create.  The rest?  “I had to.” “I couldn’t help it.” “I wanted to make something that people would enjoy.” “I wanted to be remembered for something after I was gone.” “I needed to.”  You’ll note a distinct absence of the word ‘money’, and a large component of need – artists create because they feel they have to, whether or not they have any particular talent at it.  Open source principles argue that collaborative filtering will adequately serve (and this argument is probably *more* useful in the context of art than software, as the metric for “good” is more accessible to anyone in artistic media) to deal with the difference between good and bad taste, between ugly and beautiful – especially since people  have different conceptions of beautiful.

But the bigger problem with Clark’s argument is in the notion of the romantic artist as the creator whose creation is individual and internal.  Art doesn’t work that way.  All art is manipulation of common cultural symbols in order to achieve an artistic purpose – without these common symbols, art cannot truly reach the intended viewer.  The symbols can be anything from cultural tropes – the general, like heartbreak, or the more specific, like Dark Is Evil, the in-between like dog and shotgun references in mocking country music – to common structures – the GDC chord progression in pop music, traditional folk melodies – to in-jokes and references – sampling, or intentional reuse of musical chords to evoke another work.  Art is quite open source in the sense that artists expose their source code to others so that others can learn from that code and reuse it for their own artistic purposes.  No, you wouldn’t generally use version-control systems to write a novel (although don’t entirely underestimate the notion – the Sanctuary series, amongst many others, are shared universes – but if they’d been starting it today, perhaps it would have been styled an “open source” universe, where the basic modules are available for all to play with but are checked in and out of the central repository by the continuity editors) but that doesn’t mean the larger themes, lessons, and importance of the open source notion isn’t useful in arts.  In many ways, something even stronger than open source was the original model for art – copyright is a relatively recent innovation, after all, and in the medieval era most European musicians made their money from patronage and performance (you know, supporting code, whether they wrote it or borrowed it from someone else who wrote it).  Most artforms have always incorporated earlier works by reference, something that open source makes intentional and possible in the world of software.

Is open source the right model for everything?  I don’t think so, personally, but that’s not important – the flaws that Clark points out are very prevalent in open source software because the wrong types of people are exerting control over things like interface.  When you take someone with talent in UI design and give them control over the UI, open source produces excellent software – the problems arise when you give people without that skillset (programmers, alas, typically are not interface experts) the ability to control the UI, and don’t have adequate selection mechanisms (because interface expertise isn’t something that’s possessed commonly).  An “open source” field of art lacks these problems, as outlined above – selection expertise is inherent in the program.  Expertise is still desirable, but it isn’t incompatible with the open source ideology, despite Clark’s statement.