The Infringing Bean: A Case Study in Art Copyrights

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china-cloud-gate-bn-jv887_karama_g_20150813233231A giant bean made it to the international intellectual property scene. The design at issue is referred to as “the bean” because of its shape. This bean is in fact a monumental (33 by 66 by 42 feet, weighing 110 tons) Chicago-based arched oval sculpture fashioned in stainless steel, reflecting the Chicago skyline. This work of art, officially named “Cloud Gate,” was originally created and completed by artist Anish Kapoor in 2006 and has since attracted many tourists to see it in Chicago.

Cloud Gate became an international copyright issue because a strikingly similar statue recently appeared in the Xinjiang region of China. Some argue that this Chinese “bean” is meant to resemble an oil bubble, purposefully reflecting the ground of the oil-producing city in which it stands. Nonetheless, Kapoor, upset about what he alleges to be an infringement of his merited copyright ownership, has vowed to pursue all legal remedies applicable to his case. Because Kapoor is a British resident and the UK and China are members of the Berne Convention, UCC Geneva, UCC Paris, the Agreement on Trade-Related Aspects of IP Rights, and the WIPO Copyright Treaty, Kapoor may attempt to enforce his copyright protection in China under the Chinese legal system. The remedies available to Kapoor in China, however, might differ if he were to try the case under U.S. copyright law.

In our latest blogpost, Copyright Protection in the 2016 Presidential Election, we defined some of the benefits of registering your copyright and of doing so promptly. Here, we provide the remedies available under U.S. law to the owner of a registered work that has been infringed upon. Such artist, in addition to the option to request an injunction to stop the infringing activity, would also be able to choose between statutory damages on the one hand, or actual damages and profits on the other.

  • Statutory Damages: Under 17 U.S.C. § 504 of the United States Code, the basic level of statutory damages is between $750 and $30,000 per work, at the discretion of the court. Copyright owners who are able to prove willful infringement (i.e., deliberate or intentional infringement) may be entitled to damages up to $150,000 per work. If the infringer is able to demonstrate to the court that they were “not aware and had no reason to believe” they were infringing on the owners’ artistic creation, damages may be reduced to $200 per work. It is important to note that statutory damages are only available for works registered prior to the infringement or within three months of publication.
  • Actual Damages and Profits: If the copyright owner elects to instead ask the court for actual damages and profits, then the damages actually suffered by him or her, in addition to the profits the infringing artist has accumulated, will be awarded. To fully recover, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

That being said, Anish Kapoor would probably encounter difficulty proving actual damages under U.S. copyright law because he is not likely to prove profits lost in Chicago because of a similar sculpture in a village in China. He likewise would have difficulty proving the profits earned by the artist of the Chinese work.

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