Friday, January 07, 2011

FYI: "Jeff Koons owns all likenesses of balloon dogs"

Jeff Koons' lawyers have sent the Park Life gallery in San Francisco a cease-and-desist letter in connection with its sale of balloon dog bookends manufactured by Toronto-based imm Living. The artist claims the bookends violate his intellectual property rights due to their resemblance of his iconic giant-sized sculptures "Balloon Dog." Of course as ARTINFO points out, the bookends also resemble "a conventional balloon dog of the kind commonly found at circuses and children's birthday parties."

Surely it cannot be the case that artists who appropriate everyday objects to create artworks (a trend initiated by Marcel Duchamp's "readymades") have the exclusive right over "all likenesses" of those objects. In the unlikely case that this incident does end up in court, I don't think the precedent referred to by ARTINFO is in fact relevant as the facts here can be distinguished from those in that case. In Blanch v. Koons, the artist had appropriated part of a copyrighted image to make what the court determined was a "fair use" of such image. In this case however, the artist is not making use of a copyrighted image -- he is simply using the likeness of an everyday object, a balloon dog, as the inspiration for his sculptures. I don't know enough about intellectual property law to state what Koons' strongest legal claim is ("fair use" certainly is not) but I expect it would involve some kind of comparison between the bookend dog and the "Balloon Dog" in terms of materials, shine, proportions etc. In other words, the court will ask just how similar the bookends are to the sculptures. I wonder whether the context in which the bookends are found (the art shop of a gallery) makes a difference (Park Life's suggestion that the letter should have been sent to the manufacturer instead of the gallery could be interpreted as implying that the context in which the balloons are found are not relevant to the issue of whether or not the artist's rights are being violated).

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