Cloudgate by Anish Kapoor is a monumental outdoor sculpture in the Chicago Loop. People say it looks like a giant kidney bean or a blob (a big blob) of mercury. The image here is from a screen shot of a propaganda video by the NRA. Kapoor has strong objections to his sculpture being used to further the agenda of an organization that he hates and he is using a novel approach to express his dismay by suing the NRA through US copyright law.
The discussion in Hyperallergic reviews a topic – US Copyright law – close to the heart of artists, curators and publishers. Such users of art have mastered the concept of “fair use” in order to stay on the correct side of what is often a very fine line. Under “fair use” copyrighted work may be used without consent of the artist, evaluated case-by-case, in consideration of 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.
But a potential infringer of copyright may also be protected by a legal construct called the deminimus use exception: the court is not going to bother with a full fair-use investigation if the amount of copying is trivial. Hyperallergic cites a judge who states, “.. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.”
Kapoor will probably lose:
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.
I’m still working on getting Issue 4 out the door by my new deadline: any day now.
Event Horizon 