Anish Kapoor, the NRA and how using derivative works of public sculptures can land you in trouble

The British sculptor reached an out-of-court settlement against the US gun group. We look back at some of art's recent brushes with copyright laws

Anish Kapoor's "Cloud Gate", popularly known as the Bean, was featured in an NRA promotional video. Kapoor pronounced himself "disgusted" and sued.

Anish Kapoor has won an out-of-court settlement against the National Rifle Association (NRA) for their use of an image of one of his sculptures, popularly known as the “Bean” and weighing 110 tons, in an incendiary promotional video last August.

The one-minute advertisement was titled, with typical subtlety, The Clenched Fist of Truth, and showed NRA spokesperson Dana Loesch excoriating a phantom enemy for fomenting a conspiracy against America.

The video cycles through a series of apparently leftist institutions, such as schools, concert halls (Frank Gehry’s Walt Disney Concert Hall in Los Angeles), and museums and artworks, including Kapoor’s Bean, arguing that these institutions are spreading lies about US President Donald Trump and the police.

The Mumbai-born British sculptor said he was “disgusted” to see his artwork included. He accused the NRA of inciting “paranoia, conflict and violence”.

The Bean, formally known as the Cloud Gate, is a public sculpture opposite the Art Institute of Chicago that has become a popular tourism attraction since it was installed in 2004.

Kapoor filed a suit in Illinois based on copyright infringement, and this past week reached an out-of-course settlement.

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Copyright infringement is not an unusual legal strategy in a case like this, although it is complicated by the fact that the Bean is a public sculpture.

According to US copyright law, artists own the right to “derivative works” from their original work, such as a model, print or photograph made of that sculpture.

Photographs of public artworks often fall under “fair use” category, which is typically employed to protect publicly beneficial reproductions of the artwork, such as those used for educational or newsworthy ends. And, in the US, any sculpture made before 1923 is out of copyright.

Most artists won’t enforce the derivative works clause unless there is an issue around money – let’s say, someone photographs a painting and tries to sell his or her photograph commercially.

So as long as you're only uploading to Instagram, your photos should be okay. And indeed this social media age has prompted some artists to think through the questions of image-ownership and circulation critically.

Ai Weiwei, for example, made a bling backdrop of gold interlinked chains that seems almost deliberately positioned as a selfie background – and then stipulated that no visitors can take pictures of the work.

It's a commentary on censorship and appearance, as well as a complex social dance. When the work, The Animal That Looks Like a Llama but Is Really an Alpaca, was installed at NYUAD Art Gallery in 2016, exhibition security guards spent much of their time policing any potential flouters of Ai's rule.

Kapoor's Cloud Gate has been the subject of copyright infringement cases before. There have been reports of police stopping photojournalists from taking pictures of it (according to Sculpture magazine), and, in 2015, a strikingly similar sculpture to Cloud Gate appeared in the western China city of Karamay, in Xinjiang.

The spokesperson for Karamay, Ma Jun, said at the time that the Xinjiang sculpture represented an oil bubble. (Xinjiang is an oil-producing region.) Kapoor announced he would be pursuing the Chinese authorities, but nothing further was heard.

Kapoor, who won the Turner Prize in 1991, does not have a reputation for being especially litigious. It is probably more that as a well-known figure, he has had more unwelcome opportunities to file suits and to have these covered in the press. But he did enter into one legal dispute that remains justly famous: his attempt to trademark a colour.

Kapoor’s work plays with perception and the immediate feeling that art can spark in the viewer. A number of sculptures are concave structures, painted in dark, dark colours, that make the viewer feel as if he or she is gazing into a yawning abyss.

As part of this exploration, in 2015, he bought the exclusive rights to Vantablack, known as the blackest black. The pigment was developed for military usage by the British company nanosystems and absorbs 99.96 per cent of all light rays. In the process, he also removed it from the palette of any other artist who might want to use the colour.

There was an uproar from the artistic community, in the kind of tongue-in-cheek, slightly passive aggressive way in which Britons excel.

First, the British artist and paint-maker Stuart Semple created a fluorescent pink pigment – the “pinkest pink” – and made it accessible to all artists, except for Anish Kapoor, who was legally barred from purchasing it.

Kapoor got his hands on it anyway, and posted a picture on Instagram showing his middle finger stuck into the pinky pink pigment. He captioned it “Up yours #pink".

Semple has since made further paints that he asks not to be shared with Kapoor – the world's most glittery glitter, the world's greenest green and the world's glowiest glow – that he offers for sale on his website, Culture Hustle, for £3.99 a pot. A hashtag #sharetheblack circulated.

The story died down, but lives on as legend in the art world. Perhaps Kapoor is hoping that his latest suit against the NRA will deflect attention away from his own part in the dastardly 2015–2016 colour wars.