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.)

Legally speaking (and this is coming from Campbell v. Acuff-Rose, the 2 Live Crew case, which is pretty much the case any parody issue involving copyright will turn to immediately for resolution): Parody is the use of portions of a copyrighted work to make a comment or criticism *reflecting on that work*. Satire is the use of the work to make a comment or criticism of a larger societal issue. Parody is near per-se protected under fair use; satire isn’t, having to fall back on the §107 factors.  The line can be hard to draw; here are some examples.

Campbell v. Acuff-Rose: Pretty Woman’s lyrics changed to criticize the notion of womanhood presented in the original song. Parody: reflects on the original.

OJ/Cat in the Hat case (I forget the cite): Dr. Seuss’s Cat in the Hat trade dress and patterns used in a book about the OJ Simpson trial. Satire: use of work to talk about an external issue.

Mattel v. MCA Records: Mattel sues Aqua/record label for use of their trademark “Barbie” in their song “Barbie Girl”. Parody: the song comments on the image surrounding Barbie and invokes it to criticize/comment on the unreality of it.

Parks v. LaFace Records: Rosa Parks sued Outkast for their use of her name/likeness rights in their song “Rosa Parks”. Not protected – the use of her name was simply to invoke her image for their own monetary purposes, there wasn’t any use of it to criticize or comment in any way. Not even a satire.

Essentially, the Downfall memes are *not* parody because they use the original copyrighted work as a vehicle to comment on some external issue (for example, DMCA takedown notices), not the original work. A hypothetical Downfall meme criticizing the concept of Hitler embedded in the movie would likely fit under the legal parody definition, but most of the ones I’ve seen wouldn’t. They may still be covered under fair use, but the analysis gets more complicated.

Essentially, fair use is a balancing test, weighing four factors against one another; the purpose and character of the use, the nature of the work, the amount taken, and the effect on the original. A quick fair use analysis example, using a hypothetical Downfall meme video talking about Ben Roethlisberger being a rapist. I’ll also note: fair use is widely recognized as an INCREDIBLY murky area of law. Other people may conclude differently than I have, quite reasonably. For example, the EFF thinks this is a clear case of fair use; I think it *should* be, but isn’t clearly so under the current state of the law.

Purpose and character of the use: this is also often known as the transformativeness factor, in that the degree to which the original has been used to contribute new expression or new aesthetic value is transforming the original into a new work. It also invokes commercial/noncommercial distinctions. Here, the uses are non-commercial (by the user, although you have to think about how Youtube stands to benefit from commercializing them, and whether that’s going to come into the analysis) and the work is transformed to some degree, although not extensively. This factor probably weighs weakly in favor of the defense.

The nature of the work: both works are expressive works of art. This factor is neutral; neither side wins. (If one work had been more factual, or if political speech was involved it might weigh weakly to one side or another, but generally fair use analysis ignores factor 2 to a pretty significant degree.)

Amount and substantiality of the piece taken: this is both a quantitative and qualitative evaluation. The quantitative amount taken is fairly low; 4 minutes or so out of 120 minutes, percentage wise, is not huge. However, it’s identified as one of the climactic scenes in the movie, so it does have some substantial amount of meaning in the original work. Probably a push, maybe weakly in favor of the plaintiff.

Finally, the effect on the original factor. Here is where (along with transformativeness) I feel existing law really has it wrong in terms of how widely they’ll look for an effect. That said: this is probably unlikely to have much effect on the market for the original. There’s no real reason to believe the filmmaker is going to want to license that four minute segment for these purposes, so no reason to believe this is going to harm a potential market. As such the real question is whether the clips will raise, lower, or not affect demand for the original. Historically I think this would have been looked at as harmful to the original – people will watch this and potentially be less likely to watch the original (looking at the video trailer cases, for example, though those are not perfectly on point) – but I think a modern court might be more receptive, if not perfectly so, to the argument that this is actually increasing demand for the original by making people aware of it. However, I’m not sure that that argument will be bought, and as such I’d say this is probably a push at best, possibly weakly in favor for the plaintiff. And that’s why I say it’s unclear/arguable what their real fair use status is – the weighting factors are going to come out near neutral (especially since courts tend to embrace factors 1 and 4 to a much greater extent than 2/3) and as such, an actual suit on the topic could go down either way.

(Complaints by users who’ve suffered takedown that YouTube isn’t protecting them ignore the fact that YouTube only receives their safe harbor from being sued because they do comply with takedown notices; the proper alternative is to file a counter-notification. After Universal v. Lenz, there’s a lot of incentive for companies not to file improper takedowns, and a decent incentive for users to counter-file.)

Rights-holders will tell you that a statutory license (also known as a compulsory license) is an infringement on their sacred property rights in their creative work.  I mean, of course they will – it hurts their economic interests to have one of their rights taken away from their own control and placed into federal government control, right?

Not exactly.  That viewpoint relies on the assumption that they have that right inviolate prior to the statutory license.  In the case of copyright, that viewpoint is often false as a matter of law – the rights in intellectual property explicitly being granted by the federal government (or, prior to 1972 for sound recordings, by the states), those rights often did not exist prior to grant, and as such if the grant is accompanied by a statutory regime for licensing, the characterization placed by rights holders of one of their rights being removed from their control is inaccurate.

However, when the right was a pre-existing grant, or an implied right that originates from some other explicitly recognized right, the characterization looks a lot better.  And when we cast it in the parlance of property, that some right of value to the right-holder is being taken away from them, our sympathy increases.

Should it?

It is not, I think, a new insight that property is no less a set of rights granted by the government than intellectual property.  I first ran across the notion in 1930s pieces by Robert Hale (Coercion and Distribution in a Supposedly Non-Coercive State), discussing the coercive nature of property, and Morris Cohen (Property and Sovereignty), discussing the idea that property is not about rights over things but rather rights against others regarding things.  In this sense, all property is intellectual property – the ability to make some use of your property does not convey you the right to use it in that way (copying a copyrighted work, or creating a nuisance on your land), nor does having the ability to prevent others from using your property allow you to do so legally (DMCA exceptions to technological measures, the defense of necessity in trespass).  All property rights flow not from ownership of the piece of property, but from recognition by the coercive authority that such rights exist.

So, if we have this notion, that property both real and intellectual is not inherent, and that the two are equally created notions flowing from coercive authority, why is it we can create a statutory licensing regime for intellectual property but not real property?

I can offer two reasons.  First, we do, in fact, create statutory regimes in real property.  We are willing to create zoning ordinances that necessitate allowing certain uses of ostensibly private property.  We have a Takings Clause that is, essentially, statutory licensing of the coercive sale of land and its valuation in cases of sale to the government, and a Due Process clause that denotes the procedure for modification and removal of property rights.  The primary reason we limit statutory licensing of real property is because of resource contention issues (analogous to the tragedy of the commons) – unlike intellectual property, there is one and only one piece of land at 1776 Sovereignty Lane.  However, as noted, some limited statutory license regimes against real property do exist.

Second, we lack guidance, if not authority, in the case of real property.  Unlike intellectual property, we lack some equivalent to the Intellectual Property Clause, to guide us in *why* we might limit these rights.  Arguably other clauses of the Constitution provide this guidance – if nothing else we must try to “promote the general Welfare” – but none in quite so clear a relation as that in the IP Clause gives us.  We are reluctant enough (albeit partially because of the absolutist perception of property we attach to intellectual property) to limit the rights in intellectual property based on promotion of progress; much less so when we don’t have that clear a goal with respect to real property.

A side note: we are less reluctant to consider such exemptions in the case of trademark law and patent law, though still reluctant, than we are in the case of copyright law.  A possible reason for the greater willingness to provide exemptions in trademark and patent is that these are explicitly based in economic incentives (although trademark is derived from consumer confusion rationales, those rationales are themselves derived from an economic basis – the desire to increase commerce by allowing trademarks to serve a valuable signaling function, a function which is eliminated in the event of widespread trademark infringement).  Where the economic rationale is the reason we protect the right, we readily accept economic rationalizations for limiting the rights.  Contrast that with copyright.  Although we say copyright is economically motivated, that’s only a first level analysis.  We often dress up moral rights for authors in economic terms, and the goal explicitly stated in the Copyright Clause is not to maximize value to the creators of “Science”, but rather to promote the “Progress of Science”.  We attempt to maximize creation (and yes, creation can also be categorized economically – but in doing so, we potentially run into a version of the utilitarian moral monstrousness problem).  As a result, explicitly economic motives often ring false, especially when they seem to cut against creation of new works.

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.