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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We find Pat Choate discussing patent infringement.

He objects to “efficient infringement”, a sub-species of efficient breach.  Essentially, like any corporation, various companies will add up the potential cost of infringing a patent (including an estimate of what they will be forced to pay and the probability they are forced to do so), total up the potential profits, and if the profits outweigh the costs, they breach (in this case, they breach the social contract of the patent system) – intending the whole while to pay if found liable in a court of law.  Where a patent holder’s valuation of a technology and a product creator’s valuation of the same technology vary widely, where (after accounting for the transaction costs of negotiation and litigation) the likely cost of infringement is lower than a patent holder’s asking price for use of a patent, efficient infringement is the result.

Now, you may personally feel that some moral opprobrium should attach to this.  But it’s not a new observation that the law does not feel the same.  Justice Holmes, in his influential turn of the century article “The Path of the Law”, noted that to the ‘bad man’ there is no difference between paying a fine for doing something he was not allowed to and paying a fee to be allowed to do something.  While the notion of efficient breach wasn’t truly refined until the law and economics movement picked it up three quarters of a century later, the essence of it is stated there.  To Intel, to Microsoft, to large corporations in general, infringement is often economically efficient.  To attach morality to this, as Choate does, reads into the law something that simply isn’t there – we don’t legislate morality.  It isn’t immoral to infringe a patent, simply illegal.

Beyond this, the assertion that companies are knowing infringers is at best questionable.  Though the problem of submarine patents has lessened with changes to the law, it still exists – often companies who infringe don’t know of the existence of the original patent.  One of the reasons those large companies are advocating for changes to the system that make willful infringement proof a more stringent requirement is because they’re so often subject to suits by non-practicing entities.  These companies are often some of the largest patent holders in the world – IBM is usually the top recipient of new patents in any given year and has an incredibly valuable patent portfolio.  They’re not interested in making infringement impossible to prove – they’re often the entity suing in infringement cases, and patent litigation typically represents a profit center for them.  They are interested in limiting the scope of willful infringement – for example, as represented by the modifications in the Seagate case, voiding the requirement of a company to conduct expensive patent searches before going ahead with use of a technology, and allowing good faith belief in the invalidity of a patent (as represented by opinion of counsel) to serve as a defense to willfulness.  The changes in law are intended to protect good faith actors.

Further, Choate misunderstands the remedy.  There’s already an extra penalty for efficient infringement.  If his assertion that a company knew of a patent and chose to go ahead and infringe it anyway (predicate assumptions to a situation of efficient infringement) is true in a given case (and not having followed the DataTreasury case, I offer no opinion on the validity of the statement with respect to it) there already is a remedy.  That’s willful infringement.  That’s treble damages (and, of course, the product owner must also pay the patent holder for their patent rights going forward or remove the patented technology from their product).

It may feel wrong to defend a corporation’s infringement, but it’s generally not a bad idea to try to limit the scope of willfulness in patent law – allowing it too much play will do anything but “promote the progress of . . . useful arts”.