Bursting Jeff Koons' bubble: Why he is a hypocrite, why he’ll lose his latest court fight

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Balloon dog at the Met. (Photo via thegirlsny on flickr.)
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Just before Christmas, lawyers for the artist Jeff Koons sent a “cease and desist” letter to a San Francisco gallery called Park Life, demanding that it stop selling a set of $30 bookends in the shape of balloon dogs.

Koons, of course, is the creator of the famous “Balloon Dog” sculptures that have exhibited on the roof of the Metropolitan Museum of Art and at Versailles among other places.

Koons has been ridiculed for the move, and it is in fact ridiculous. These bookends are balloon dogs, not unlike Koons' sculptures in shape if not in scale. But so is a creation by Summer the Clown, who performs at South Street Seaport—her web site even describes this balloon dog as her “really basic” model. You can judge for yourself, but doesn't this actually look more like Koons' sculpture than the bookends do?

But what is perhaps most irksome about Koons' claims on the Balloon Dog idea are deeper questions that reach beyond the law: How can an artist who became rich and famous by appropriating objects whose very everydayness is their calling card justify claiming rights in the forms of the objects he appropriates? It's troubling.

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Koons' letter claims the bookends infringe on Koons’ copyright. Park Life originally removed the bookends from its shelves, but later said it would begin selling them again and that Koons was taking his claims up with the manufacturer, who distributes them to some 700 stores nationwide.

From a legal point of view, copyright only covers the novel creative elements added to a familiar unoriginal form. Over time, copyright law evolved to handle situations where the work in question borrows heavily from ordinary or well-known material. One doctrine, the “idea/expression dichotomy,” allows an author to copyright the expression layered on top of factual information, but not to monopolize the facts themselves. So, Edmund Morris holds a copyright in his prose describing Teddy Roosevelt’s expedition to Brazil in his new book, but not any of the information conveyed, including any revelations Morris himself discovered. Another copyright rule, the “merger doctrine,” denies copyright protection when there is only one way to convey an idea. On this basis, for example, some maps, diagrams, and contest rules have been held unprotectable.

Koons’ copyright claim runs afoul of these limitations. Potentially, he might enjoy “thin” protection for certain aesthetic choices in the sculpture such as materials, colors, and poses. But a side-by-side comparison demonstrates that the bookend differs from his work in each of these respects, not to mention in its size and its function. The only features common to both Koons’ work and the bookends are those also shared by a thousand balloon dogs twisted at a thousand children’s birthday parties.

These elements—the idea of a dog made from balloons, I guess, or the way one looks when it is finished—belong to everybody, or nobody.

If Jeff Koons were not Jeff Koons, this might be a fairly ordinary example of copyright overreaching, all too common in the increasingly aggressive battleground of intellectual property law. What’s galling here is the identity of the overreaching artist. As the Park Life blog pungently phrased it after receiving Koons’ letter: “Wait, I’m confused, isn[’]t his ENTIRE FUCKING CAREER based on co-opting other peoples work/objects????

And that's what adds a layer of hypocrisy to Koons' claim. Appropriation art made Koons what he is.

This is already an area of significant ferment in copyright. The traditional doctrines mentioned above do a pretty good job when the item that’s copied, like the balloon dog, already has some presence in the public consciousness and isn’t covered by someone else’s copyright. Problems start when someone else owns rights in the stuff that’s appropriated. In the much-talked-about remix culture of the present, those conflicts come up all the time: sampling by hip hop artists, or Shepherd Fairey using an AP photo of then-Senator Barrack Obama as the basis for his iconic “HOPE” posters, or uses of found objects by collage artists. Yet these are exactly the sorts of uses that are the raison d'être of appropriation art.

Just those sorts of appropriations made Koons rich and famous—and also made him a regular guest of the federal courthouse in Manhattan. He has been sued there no fewer than four times over his own duplication of copyrighted work in his art. Three times, he lost (twice after fighting unfavorable rulings on appeal). One of those losing cases, Rogers v. Koons, has become a famous precedent concerning the copyright defense of fair use, taught in introductory copyright classes. The lawsuit arose from Koons’ work “String of Puppies.” Apparently he bought a picture postcard and instructed his Italian artisans to replicate it exactly as a polychromed wood sculpture. The appeals court noted that he strived to replicate every aesthetic attribute of the photo perfectly. And it concluded that, because he did nothing to “transform” the photograph, he did not qualify for fair use.

The opinion was scathing toward Koons from the very first paragraph, which said his “copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism.” The court affirmed an order that he turn over his copy of the sculpture and a healthy share of the profits to the photographer whose work was on the postcard.

In the most recent suit against him, Koons prevailed. But there, he used a part of a photo from a Gucci ad that appeared in Allure magazine, flipped upside down, as a portion of a larger collage in his work “Niagara.” This was not a wholesale duplication like “String of Puppies,” and it transformed the original, so the court found that fair use applied. (Not to mention that the judge who wrote the opinion, Robert Sack, made his name as a media and First Amendment lawyer.)

If the bookends at Park Life had been a slavish copy of Koons’ sculpture, he might have an argument—citing the decision in his own famous case, which he fought tooth and nail all the way through a federal appeal. But this isn’t a copy of that sort at all. Apparently the thing Koons claims to own consists of the very idea of a balloon animal. He wants somehow to leverage his limited rights in a particular sculpture of a balloon dog into control over the object that gives his sculpture its meaning.

Intellectual property and coneptual art fit pretty poorly together as a rule. So many forms of modern art aim to subvert the very notion of ownership, and appropriation in particular recasts kitsch images as common cultural property. Sometimes it's hard to identify what the “intellectual property” is. Have we all possibly infringed on the Turner Prize-winning work “The Lights Going On and Off” (an empty room where the lights do just that)? And just how much “transformation” is needed to turn a copyrighted work into something new enough that the fair use defense applies?

These tricky and fascinating issues don't even arise in Koons’ dispute over the bookends. Critics sometimes say of Koons’ work that there is less to it than first meets the eye. It's certainly true of his claims on the Balloon Dog.