A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights.  While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.

Kapoor’s Cloud Gate is an iconic feature of Chicago, right outside the Art Institute of Chicago and Millennium Park.  Installed in 2006, the rounded oblong sculpture measures 33 x 66 x 42 feet, with a highly polished exterior that almost looks like a drop of mercury mid-motion, with an arc underneath large enough to walk through.  Recently, however, a strikingly similar sculpture appeared in the Chinese city of Karamay, in the Xinjiang region.  It, too, has an ovoid shape that is concave perpendicular to its axis, allowing passage underneath by pedestrians (and is of a similar scale allowing one to do so).  One difference that appears to exist (from looking at photographs) is that unlike Cloud Gate, one end of the Chinese sculpture has two points of contact with the ground rather than one.  Thus, a visitor can walk parallel to the access of the sculpture and go underneath, which she could not do in Chicago.

The story got somewhat stranger when Kapoor learned of the Chinese work and decried it as “plagiarism.”  Ma Jun of the region’s tourism bureau told the Wall Street Journal that the works are in fact distinct, because He said that Cloud Gate has “a bean shape” while the Chinese sculpture is meant to mimic an oil bubble in reference to an oil well in the vicinity.  To me, that sound a little like Vanilla Ice trying to explain why the baseline in “Ice, Ice, Baby” is different than the famous riff from “Pressure” by David Bowie and Freddie Mercury (spoiler alert: they’re the same!).

Kapoor threatened to sue in a statement to Hyperallergic:

It seems that in China today it is permissible to steal the creativity of others. . . . I feel I must take this to the highest level and pursue those responsible in the courts. I hope that the Mayor of Chicago will join me in this action. The Chinese authorities must act to stop this kind of infringement and allow the full enforcement of copyright.

Rather than side with Kapoor, however, Chicago Mayor Rahm Emmanuel somewhat puzzlingly told the Chicago Sun Times, “Imitation is the greatest form of flattery’ is what I would say. . . .  And if you want to see original artwork like this or like the Bean, you come to Chicago.”  Kapoor, not surprisingly, found this unhelpful.

It is unknown what Kapoor will do at this point.  Even if he concluded that he has a case for infringement (which in my opinion he does for reasons I will get to shortly), he would also have to determine how to acquire jurisdiction over the Chinese city in a U.S. court, likely pursuant to an exception under the Foreign Sovereign Immunities Act (FSIA).  I would expect that his attorneys are analyzing that question so that he can decide what to do.

In the meantime, I think the question of infringement and/or “plagiarism” is the most interesting aspect of this.  As usual, Donn Zaretsky has framed an interesting series of questions arising out of this case at The Art Law Blog:

how do we distinguish this from other cases of appropriation, where the conventional wisdom seems to run in the other direction?  Do the SuicideGirls count as other innovators who have had their copyrighted material stolen in a similar way?  Is it correct to accept that we should allow their creativity to be stolen?  Can we let that happen?

I don’t think there’s any argument for appropriation or fair use here, primarily because the Chinese city is not claiming (as Richard Prince has) that the unnamed Chinese artist has a right to copy Kapoor, the Chinese deny that they copied anything at all.  That seems implausible to me, the works are just too similar and the Kapoor work is extremely well known.  If there is copying, and there is no defense, then there is infringement. To me, the way to look at these cases flows from distinguishing the various terms we hear all the time.  Here is my take: Appropriation is the act of incorporating elements of another work of art.  It is a term that has more to do with artistic process than legal rights.  Fair use, of course, is a statutory defense to a charge of copyright infringement, and the most common excuse asserted in a case of appropriation.  Prince copied Patrick Cariou, but he (successfully) argued that fair use allowed him to.

By contrast, I actually think that plagiarism is a singularly unhelpful word in the context of visual art and legal rights.  The Oxford English Dictionary defines plagiarism as:

  1. The action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own; literary theft.
  2. A particular idea, piece of writing, design, etc., which has been plagiarized; an act or product of plagiary.

Fundamentally plagiarism is about the idea, which copyright and visual art is not terribly well suited to address (and arguably does not address), and rather fits much better for written works.  Kapoor is not a lawyer, so it’s not surprising that he’s most offended at the notion that someone took his creative idea.  But that may not be what wins for him in court.

Some examples: If I write a paper asserting that Congress ought to adopt artist’s royalties, and I fail to point out that my argument is structured and premised just like an earlier author’s, I have committed plagiarism.  But I haven’t committed copyright infringement unless I actually copy the words and phrasing either identically or substantially.  And, necessarily, visual work that intentionally references a previous work cannot credit the first artist the way a writer can.

You can’t drop a footnote in a sculpture or painting.

Contrast: I sculpt a reflective metal work that is indented to distort the reflection of the city around it.  It is a rectangle and 30 feet long.  If a second sculptor makes a shiny metal sculpture that has a similar visual effect on the image of nearby buildings, but it is a sphere, I don’t see much of a copyright claim, but thematically one could certainly argue “plagiarism.”  Even as applied to visual art, it is more a matter of criticism and art history than legal rights.  And the deeper one goes (particularly in painting), one sees why ideas are not generally subject to copyright.  Otherwise, we would be arguing over melancholy landscapes, or bold personalities in portraits.  My own view is that we fortunately don’t have to drill down on those cases.

There is little question that notwithstanding my general unease at claims that technology has made copyright obsolete, a cultural shift of image availability and sharing is underway in the creative community that is pushing the boundaries of copyright.  It does not mean that the rights have changed, but it probably means that certain kinds of disagreements are here to stay for the foreseeable future.