My friend Alfred Steiner -- who was an IP lawyer at Morrison & Foerster and is now a full-time artist -- writes in with his take on Cloud Gate-gate:
"I'd like to propose a potential solution to Donn's query whether what appears to be a copy of Anish Kapoor's famous Cloud Gate should be regarded as actionable piracy or permissible appropriation. In an article I wrote for Landslide, the American Bar Association's intellectual property publication, I argued that '[a]nyone should be able to use preexisting material to make anything, so long as he or she makes only one copy and is not engaging in blatant piracy.' I translated that proposition into more precise copyright language as follows:
"Reproducing and preparing derivative works based upon a copyrighted work for the purpose of creating, distributing, publicly displaying, or publicly performing a unique work constitutes fair use unless it would be reasonable to expect that someone would buy the unique work (or pay to see it displayed or performed) instead of buying an authorized copy of the corresponding copyrighted work or an authorized derivative work based upon such work (or paying to see it displayed or performed), assuming there is a well- established market for such derivative works (e.g., a movie adaptation of a novel).
"How does this apply to the allegedly infringing sculpture (the 'Oil Drop')?
"Assuming that there is only one Oil Drop and that it is a copy of Cloud Gate (more on that below), the pertinent question here is whether it would be reasonable to expect that someone would buy the Oil Drop instead of buying an authorized copy of Cloud Gate. And it seems pretty clear to me that many people in the position of buying a large, elaborately produced public sculpture might opt to purchase the Oil Drop instead of an authorized copy of Cloud Gate. Developers and park planners want something that viewers will come to see, and they know that most viewers will care less about who made the sculpture than how huge and shiny it is.
"So I would find infringement here. Or would I? Well, I would assuming, as I did above, that the Oil Drop is a copy of Cloud Gate. But frankly I can't be sure based on the photographs I've seen online. As Ma Jun, the section chief of the local tourism bureau suggests, Kapoor cannot expect to prevent the production of all round, shiny sculptures. So it is essential that we know how similar the two sculptures are. In other words, if the blob of Oil Drop is shaped somewhat differently than the Cloud Gate blob, I might not find infringement. While I believe Kapoor's work warrants copyright, I think the copyright is relatively narrow, and should not extend to all round, shiny blob sculptures.
"If we ask the same question of Richard Prince's appropriation of the Suicide Girl's Instagram posts, I think we get a different result. I don't think someone who wants to buy a photograph from the Suicide Girls would be likely to want a canvas print in Instagram format, with the associated comments including those of Prince himself. Prince's added comments, while visually negligible, change the meaning of the work significantly. Among other things, the Suicide Girls represent the idea that women should be able to control the way their sexuality is depicted. A male artist appropriating the images with his own added commentary is anathema. Of course, one could argue that someone who just wants a naked picture of a punk rock girl could reasonably be expected to buy a Prince instead (if we ignore the exorbitant price differential), and that argument is not without merit. But in my mind the balance weighs in favor of Prince."