What Can the Jeff Koons Lawsuit Teach Us About Copyright Law? A Guest Post

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in?counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues. This week, they write about a recent?Jeff Koons controversy.

Jeff Koons Turns the Table on Copyright Law
By Kal Raustiala and Chris Sprigman

Jeff Koons is an American artist who produces sculpture, paintings and controversy (and not necessarily in that order).? Koons specializes in the artistic reproduction of kitsch — for example, he took this photograph by Art Rogers of two people holding a batch of puppies as inspiration for a similar-looking sculpture. Working in this vein has gotten Koons sued several times for copyright infringement.? Koons lost the lawsuit filed by Rogers, and lost again in two other suits involving different works.

Recently, though, Koons tried to turn the tables by filing a suit against Park Life, a San Francisco boutique that sells, among other interesting knick-knacks, these balloon-dog-shaped plastic book ends. Koons claimed that Park Life infringed the copyright on Koons’s massive balloon dog sculptures, which can be seen in many major museums around the world.

Koons’s claim was pretty ridiculous.? “As virtually any clown can attest,” Park Life’s lawyer wrote to the court, “no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.” And the judge in the case agreed.

What was Koons thinking? Maybe Koons was mischievously attempting to point out how absurd copyright law can be — after all, he’s been copyright’s victim on three occasions.? But whatever his motivation in filing suit, it points out a larger problem with copyright law.? Copyright grants limited property rights in original works of creative expression.? It does so to induce creators to produce new works, while at the same time maintaining the widest possible opportunity for people to experience those works.? Copyright is not an unlimited right, however.? It is carefully hedged — there is no copyright, for example, in ideas, and there are many uses of copyrighted works that qualify as fair and therefore do not violate copyright.

But that’s the law on paper. The real world is different.? As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners — at least those who have registered their works with the Copyright Office — to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal.? The cost of a lawsuit — even a lawsuit that seems unlikely to succeed — is just too great, unless the defendant is very, very sure they will win.

As it turned out, Park Life was very, very sure, and so they defeated Koons. But that is a rare story. And as a result, copyright often exerts a “chilling effect” on legitimate conduct that some copyright owners may decide they don’t like.? The result is an uncomfortably large number of frivolous copyright claims, like Koons’s.? Some of the best — i.e., the worst — examples of this can be found at an aptly-named website — chillingeffects.org.? Here, for example, is the firm that owns rights in the infamous “Barney” children’s television character threatening a website which uses images of Barney as part of a parody — which is recognized as fair use.? Threatening letters like this may fail before a judge. But if they succeed in making the defendant afraid to fight, they’ve unfortunately done their job.

Ben D

"As virtually any clown can attest"... brilliant!


"Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property. "

Do you mean that they are very accomplished counterfeiters?

Dr. G

The fact that defending law suits are expensive is a problem in every area of law - not just copyrights. In copyright, this results in the chilling of creative expression but abuse in other areas of law it can result in legal extortion. The specific problem in copyright is the ease of gaining an injunction and damages which bear absolutely not relation to the actual harm caused. Koons v. Park Life is interesting and ridiculous but it doesn't reflect anything really bad about copyright law in terms of what can and can't be copyrighted. It was litigated by well-represented parties and seemed to be decided correctly in accordance with both the law and common sense.


Corporatocracy anyone?


So when will Campbell soup sue the estate of Andy Warhol for his blatant copying of their cans? I know he's some sort of 'art genius' but whatever happen to truely inspired art like Dali and Picasso, at very least evidence of talent and determination as with Lichtenstein. Why are we buying $20M sculptures of ballon dogs, especial since "virtually any clown can make those".

Richard B.

Besides all of the free legal aid organizations that are out there, someone who is being sued could represent him or herself in court. Actual people who are in litigation, and not just lawyers, can argue for themselves in court. You really can do that, and it wouldn't cost you a thing. There's even a legal term for that.


I've never understood how making a piece of "art" out of a common item (Warhol's can of soup, for instance) qualifies as creative. Certainly, Koons' biggest problem here doesn't seem to be copyright problems but lack of originality. The sneering condescension that this sort of "art" uses does nothing to advance the species. It's all about the hipster artist looking down his nose at the masses, a sort of in-joke only shared by people who only wear black clothes and smoke skinny little cigarillos. Meh.

A.J. Venter

Richard B.
Your naivety is sort of cute I guess.
In the real world, lawyers have a saying: any man who defends himself has an idiot for a lawyer.
This even applies if the defendant IS in fact a practicing attorney or lawyer.
Self-defense is a possibility but you need an incredibly strong case to have the slightest chance if you're not an expert in law (like the person you will be arguing against) - even if you yourself are one, your personal biases will make you less effective - which is why lawyers as defendants almost never represent themselves.
More-over the right to self-representation is NOT an absolute right and can be revoked by a judge - this happened for example in the Charles Manson case. Manson and "the family" initially all chose to self-represent, the judge revoked their right to do so a few days into the trial on the basis that their filings were "absurd and nonsensical attempts to make a mockery of the court" and gave them the option to either retain lawyers or have them appointed from the public defenders office. Since all refused to retain lawyers (as far as I know it was never ascertained whether they could have afforded it) - lawyers were appointed for them.
This would later prove a major turning point in the case. When the three female "family members" were insisting on their right to testify their lawyers saw the judge in chambers and demanded he not grant it since they were planning to deliberately purger themselves in an attempt to accept all guilt and get Manson exonerated on the conspiracy charge. Defense Lawyer Ronald Hughes told the Judge: "I cannot push a client out the window".

The short version is that "defending yourself" is not an absolute right and judges can and WILL revoke it if they feel it's the only way to see justice done. In the Manson case the revocation was probably crucial to ensuring Manson did not walk away from his crimes based on false testimony from his co-accused.


Rich Wilson

"Actual people who are in litigation, and not just lawyers, can argue for themselves in court."

Yes, and there's a term for the lawyers of people who represent themselves in court.


"It is carefully hedged - there is no copyright, for example, in ideas, and there are many uses of copyrighted works that qualify as fair and therefore do not violate copyright."

I believe this should read "copyrighted works that qualify as fair 'USE' and therefore . . ." Fair use is a term of art in the copyright context for non infringing use of otherwise copyrighted material.


It is important to note that the copyright's "limited rights" has been repeatedly expanded through coporate lobbying efforts of firms such as Disney. It they had their way, they'd just keep extending the time limit for copyrights protection each time Mickey Mouse get close to entering public domain.

We're now at death of author+70 years or 95 years from publication. Longer than any other country according to Wikipedia except for: Côte d'Ivoire. This has been a silent taking from the public domain that's been going on for several decades.

Briane Pagel

Why not incentivize the use of copyrighted material, while allowing copyright holders to prevent uses that actually do dilute or diminish their works? I suggested that a while ago:


And I think it would work.


Did Koons actually file suit against Park Life? A search of news reports shows only that Koons threatened Park Life with a C&D, and then Park Life filed for declaratory relief. Did the the court actually rule on Park Life's declaratory judgment suit? The complaint was filed less than a month ago, which makes this very unlikely? Did Koons withdraw the threat and promise not to sue? If not, Park Life hasn't "defeated" Koons...yet (query if Park Life can ever defeant Koons without getting its attorneys' fees).
While I appreciate the sentiment behind the post, as a copyright lawyer very interested in this case, I found the factual summary of the case disturbingly inaccurate.


It's interesting how the Disney Corp has gotten the copyright law revised and extended over the years.

I wish I had that kind of money to spend.

Richard B.

Gee A.J., people represent themselves in court cases across this country every day. If you are sued in a business dispute, you could argue for yourself in court. Most courts' clerk's offices have pro se help desks and readily offer help to anyone who asks.
Your analogy to a criminal trial is misplaced. Those people are given lawyers to represent them for free. If civil defendants were also offered free attorneys, that would avoid the cost barrier issue described by the authors above.


I think the government should put a few additional hedges to limit copyright law.

1. Stop being automatic. Require registration.
2. Levy IP Taxes.
3. Base the amount of the value of a copyright infringement on the amount of the taxes paid.

This would provide a way for companies like Disney to extend copyright forever (at a cost) while also providing a way for actual innovators to protect their ideas with enough value to change their life.

Currently, there is no real hope of real IP reform. Many are convinced that people owning ideas and limiting speech, innovation, and research is a good substitute for creating a law that encourages new idea.

Mary Rasenberger

The authors say: "But that's the law on paper. The real world is different." If they practiced copyright law instead of just talking about it, they would understand that copyright law is incredibly flexible in practice and not the draconian law that the professors make it out to be. The problem with academics high-jacking the discussion about copyright law, as they have, is that they don't have the depth of experience of advising clients day in and out about how copyright law impacts them. Almost every day, I help clients figure out how to use a pre-existing work and stay within the law (and most of these clients are copyright owners themselves), or advise how there's no claim even though the client believes someone "copied" their work, because for instance the "copied" work is substantially similar, copies only "ideas" or unoriginal elements or is fair use (and, no, I would not have advised Koons to proceed with this suit). Very little of what happens in copyright practice, even among disputes, ends up in court. But the academics who have chosen to take on copyright, which they believe is beholden to "Hollywood and the recording industry" (who, by the way, represent a tiny percentage of copyright holders), like the writers here, tend to focus on a few outlier cases. Yes, it's true the courts don't always get it right, but more often they do.



Grammar Note:

...unless the defendant is very very sure OF WINNING.

Or ...very very sure HE OR SHE will win.

Just sayin'.