Lego blocks – a child’s toy – has stirred up a political, censorship, and product placement controversy.

Artist Ai Weiwei’s Upcoming Work

For an upcoming exhibit at the National Gallery of Victoria in Melbourne, the Chinese artist and dissident Ai Weiwei decided to build two works using Lego construction blocks. One work tentatively titled “Lego Room” is to consist of mosaic portraits of advocates for human rights and Internet freedom including controversial figures such as WikiLeaks founder Julian Assange. The second work is to be a new version of the artist’s 1995 photo triptych, “Dropping a Han Dynasty Urn.”

This is not the first Ai Wiewei exhibit based on Lego blocks. In 2014, he did an exhibit at San Francisco’s Alcatraz prison which work including Lego-block-based portraits of 176 prisoners.

Reaction by the Lego Group

Danish toymaker, The Lego Group, refused to fill the bulk order of several million blocks needed for Ai Weiwei’s project. A Lego Group spokesman, quoted in the New York Times, explained that the company rejected the order because the company “. . . refrain[s] — on a global level — from actively engaging in or endorsing the use of Lego bricks in projects or contexts of a political agenda.”

Rights Clearance Issues?

Questions abound as to whether the Lego Group’s non-political stance was in fact political and as to whether refusing to fill the bulk purchase is censorship. For me, as an attorney whose practice includes licensing issues, the conflict also interests me from a rights clearance and product appearance perspective.

The questions of whether one can incorporate brand-named products arise frequently. Products with brand names have a way of popping up – sometimes unexpectedly – in artwork, film, productions, advertisements, and other media. While conservative media producers eschew the risks from the unlicensed appearances of brand-name products in their works, several United States court rulings sanction the unauthorized appearance of a brand-name product in a production as long as the appearance does not

  1. tarnish the product’s reputation,
  2. siphon the goodwill associated with the product, or
  3. mislead people to believe that the product manufacturer has endorsed or sponsored the production.

Courts are particularly willing to accept an unauthorized product placement when used for social commentary. Perhaps no company has learned this lesson better than Mattel, the maker of the iconic Barbie Doll. According to the courts, all the following are legally acceptable:

  • Utah photographer, Thomas Forsythe, taking and displaying photos of Barbie Doll in various absurd and often sexualized positions in his “Food Chain Barbie” photo series;
  • Artist Susanne Pitt re-selling Barbie Dolls after physically altering them and clothing them in sadomasochistic attire
  • Danish band Aqua featuring Barbie Doll in a sexually risqué song titled Barbie Girl

In contrast, featuring iconic products and their logos in non-related advertisements without a license can have dire consequences.

Back to the Lego Blocks

One commenter compared the Lego Group’s withholding of blocks to the withholding of paint, pens, or a camera because one doesn’t like the painting, book, or film that will be created from that material. If one considers the Lego Group’s mission statement, as shared on its website, “to inspire and develop the builders of tomorrow”, the comparison has some validity.

On the other hand, there are distinctions between those Lego blocks and paint, pens, or film -when being used as the basis for art. Typically, when we view a painting, book, or film, we don’t necessarily know the brand of paint, pen, or film used for the work. In contrast, each Lego construction block carries the trademark, Lego, so Lego is front and center for visual works constructed with the blocks.

Meanwhile, Ai Weiwei’s social media posts and subsequent news coverage about the conflict have generated numerous offers from around the world of contributions of the toy blocks. Hence, it appears that the artist will get the Lego blocks – as well as some “you just can’t buy that kind of” publicity – for his upcoming art project.