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.
Topics: appropriation, Donn Zaretsky, Xinjiang, Infringement, Pressure, SuicideGirls, Foreign Sovereign Immunities Act, Freddie Mercury, Rahm Emmanuel, Ma Jun, Chicago Sun Times, Ice Ice Baby, David Bowie, FSIA, Karamay, Copyright, Cloud Gate, Millennium Park, The Art Law Blog, Anish Kapoor, Plagiarism, Fair Use
Patrick Cariou has filed his much-anticipated responsive brief in the Richard Prince/Gagosian Gallery copyright infringement appeal. Cariou’s brief makes its stand on the question of transformative use. The degree to which a derivative work is transformative of a protected work is, of course, a central element of a fair use analysis about which Prince will have to persuade the Second Circuit to overturn the judgment below. In so doing, however, one starts to wonder if this case will be of less precedential value—less transformative, if you will—than it has seemed since the judgment last year.