Looks like sculptor Anish Kapoor is collaborating with Bloomberg’s Everytown to sue NRA for using footage featuring his Cloud Gate sculpture in Chicago in their video “Clenched Fist of Truth” Assuming NRA, or more accurately NRA’s PR firm, used their own or licensed material, I can’t imagine there’s any basis for this suit other than grabbing headlines. How can you copyright any picture of an object in a public place? This strikes me as a SLAPP suit. Regular readers of this blog know I’m not the world’s biggest fan of what I’ve dubbed Angry Dana videos, but it’s free speech.
While Illinois has an anti-SLAPP provision, the applicability of state anti-SLAPP provisions in federal courts varies by circuit. Federal anti-SLAPP provisions in the 7th circuit seem applicable, but only to get the suit dismissed. I’d note that Illinois doesn’t seem to have a SLAPPback provision. Â Either way, I hope NRA pursues every avenue to recover the money spend defending against this suit.
The subject rings a bell, but I haven’t reviewed it yet. As I recall, vaguely, if material is copyrighted, even though displayed in a public place, subsequent use of its image for commercial (or campaign?) purposes without permission is prohibited, though an individual may photograph it for their own private purposes. I seem to recall a similar dispute regarding a copyrighted image being used in a political (candidate’s) campaign but I forget how or if it was resolved.
Music is another example of copyrighted material that you or I could use portions of for review or illustrative purposes, but for commercial purposes would be prohibited.
The usage is the thing, I believe.
Yeah. Since I did the post it seems it’s not cut and dry. An IP lawyer I encountered commenting on the case said it’s basically an open question. There’s an exception for buildings, but it’s never been extended to works of art in a public place.
From Wikipedia:
When the park first opened in 2004, Metra police stopped a Columbia College Chicago journalism student who was working on a photography project in Millennium Park and confiscated his film because of fears of terrorism.[54] In 2005, the sculpture attracted some controversy when a professional photographer without a paid permit was denied access to the piece.[55] As is the case for all works of art currently covered by United States copyright law, the artist holds the copyright for the sculpture. This allows the public to freely photograph Cloud Gate, but permission from Kapoor or the City of Chicago (which has licensed the art) is required for any commercial reproductions of the photographs. The city first set a policy of collecting permit fees for photographs. These permits were initially set at $350 per day for professional still photographers, $1,200 per day for professional videographers and $50 per hour for wedding photographers. The policy has been changed so permits are only required for large-scale film, video and photography requiring ten-person crews and equipment.[56]
That said, even if you can copyright photographs of your art, NRA’s use is pretty clearly fair use. The sculpture appears for less than a second. It appears in Black and White. To overcome the fair use claim, they’ll have to argue that it’s a recruiting ad rather than a political statement.
What just occurred to me, though you did mention “publicity,” is that the purpose of the suit is to publicize the NRA video and get more people to look at it who aren’t the mainstay of NRA’s (now) base culture. I believe anyone not dialed in to that culture will find almost everything featuring Dana Loesch more than a little distasteful.
I read Wikipedia’s article on “copyrights” and I’m inclined to believe there would be no violation based on “The Bean” appearing in less than a second of the video, as part of a street scene. So I think there had to be another motive not connected to the merit of the suit.
Even a recruiting ad wouldn’t automatically make it not fair use, given the length it appears and how non-pivotal to the overall video it is.
I don’t see any way the NRA won’t win on a fair use defense if it gets to court – absolute worst case, which is unlikely, is being ordered to smudge it out of the hosted copy or future reposts; not a chance in hell of damages, for instance.