A while back, I blogged about “When DMCA Take-Down Notices Backfire.” Now, artist Jeff Koons has provided us with a terrific (and related) example of when overzealous cease-and-desist letters (the ink-and-paper cousins of DMCA take-down notices) make other people want to smack you.

Earlier this month, the San Francisco Bay Citizen reported that Koons’ lawyers recently sent a cease-and-desist letter to an independent San Francisco retail store/art gallery called Park Life. The offending infringement: balloon dog book-ends that are “copies” of Koons’ balloon dog sculptures.

This prompted Reyhan Harmanci of the Bay Citizen to ask two questions: “Can one copyright a balloon animal? And how does an artist who has been repeatedly sued for inappropriately using others’ copyrighted images get off attacking Park Life?”

Jeff Koons

To fully appreciate the absurdity of Koons’ cease-and-desist letter, you have to understand a little bit about Jeff Koons — the self-proclaimed “most written-about artist in the world.” Some have called Koons a “modern Michelangelo,” while others find his art “truly offensive.” A New York Times critic once complained that “Koons is pushing the relationship between art and money so far that everyone involved comes out looking slightly absurd.”

And then there’s this: Koons does not actually “make” his own art. According to BalloonHQ.com, Koons “lacks skill in sculpture, drawing, or painting.” Koons himself has said: “I’m basically the idea person. I’m not physically involved in the production. I don’t have the necessary abilities, so I go to the top people….”

Of course, a somewhat natural consequence of lacking artistic skill is a tendency to copy the work of others.

Koons’ Lawsuits

Koons has been in court numerous times over his artwork. In the late ‘80s, Koons was sued for creating a sculpture called “String of Puppies” from a black and white photograph by Art Rogers:

Koons argued that his sculpture was a “fair use” of Rogers’ photograph. Not only did the Court of Appeals for the Second Circuit disagree with Koons, it called his behavior “willful and egregious” (which, come to think of it, is a phrase that, at some point, probably appeared in a review of a Koons gallery show).

The following year, Koons lost two more lawsuits in the Southern District Court of New York. The first time was for making a sculpture using Odie from the Garfield comic strip:

This was clearly not a parody and not a fair use.

The second time, Koons lost to another photographer, Barbara Campell, who not only spent time and effort choosing the wardrobe for the people in her photo, but actually rented a farm and a pig! And after all that effort, this is what Koons came up with:

(Note: If anyone has a copy of Barbara Campbell’s original photo, please let me know!)

This is not to say that Koons loses all the time. In 2006, Koons actually won a lawsuit in which he sufficiently “transformed” a photograph from an advertisement for it to qualify as a fair use:

Notice that this photo is rotated. And, there are donuts! Okay, okay, maybe there is some transformative message about American consumption or consumerism also. In any event, this is clearly not a complete replica like the others. I mean, did you see the donuts?

Koons Strikes Back!

In the first place, it isn’t entirely clear that Park Life’s bookends — which are smaller than Koons’, made from different materials, matte rather than shiny in color and finish, and somewhat less bulbous in shape — are actually copies of Koons’ iconic works (as opposed to, you know, copies of actual balloon dogs). For their part, the owners of Park Life deny ever having seen Koons’ sculptures before receiving his cease-and-desist letter (and what possiblereason would they have to lie?).

But even taking at face value Koons’ assumption that Park Life copied his work, the great irony in all of this is that Koons is now threatening to sue Park Life for the same thing Koons has been getting sued for since the late ‘80s: ripping off other artists! Assuming that Koons can live with this irony, then, is it finally his turn to go from perennial copyright lawsuit loser to long-suffering-but-finally-prevailing victor in the courtroom?

Not yet, Jeff.

Unlike the many authors who have bested him at the courtroom (if not at the art auction block), Koons probably cannot get copyright protection for his balloon dog sculptures. Why not? Because his balloon dog sculptures combine unprotectable ideas and standard elements.

A great analogy is a case in which an artist tried to get copyright protection for producing a glass-in-glass jellyfish sculpture. In that case the court said:

[The artist] may not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells, because many jellyfish possess those body parts. He may not prevent others from depicting jellyfish in bright colors, because many jellyfish are brightly colored. He may not prevent others from depicting jellyfish swimming vertically, because jellyfish swim vertically in nature and often are depicted swimming vertically.

Another good example is a case involving stuffed toy dinosaurs in which a court held that artists “may place no reliance upon any similarity in expression resulting from either the physiognomy of dinosaurs or from the nature of stuffed animals.”

Simply put, no one can get copyright protection for copying the physical structure of an animal with a balloon. There are only so many ways it can be done and there is not enough originality involved. Now, if Koons had created some special color combination or other original style to his balloon dog, that might be a different story. But he didn’t. He just did what clowns all across America do on a regular basis and called it art.

One could also imagine Koons trying for a theoretical trademark claim, on the theory that his balloon dog statues are so iconic — at least in the art world — that a consumer would look at them and instantly think, “Jeff Koons!” In other words, that consumers look at balloon dogs and think “Koons!” rather than “Creepy, sad-looking clown at my kid’s friend’s birthday party!” It is, in fact, entirely possible that Koons — who has supposedly given interviews referring to himself in the third person — actually believes that. (I would never do such thing. That’s just not the kind of thing Dan Nabel would ever do.) But call me skeptical that he can actually make that case.

And that’s why Koons’ cease-and-desist letter is very, very silly.