Flattery AND Infringement: Independent Creation Of Karamay “Bubble”

“Cloud Gate,” a giant stainless-steel sculpture weighing over 100 tons, created by sculptor Anish Kapoor and located in Chicago’s Millennium Park, has earned the nickname “The Bean” because of its resemblance to the familiar legume seed that is a staple of church suppers around the country. The reflection of its surroundings displayed on this highly-polished object, distorted in funhouse style by the curvature of its surface, is impressive at some 60’ long and 40’ tall and, under some conditions, it has been called “stunning.” The sculpture is very popular and draws Chicagoans and tourists alike to the Park.

In August, the city of Karamay in western China unveiled “Big Oil Bubble,” a large, globular installation of shiny stainless steel that, like the Bean, provides a distorted reflection of its surroundings. Mr. Kapoor and others claim that the Bubble is an unauthorized copy of the Bean and is infringing on the copyright that Mr. Kapoor owns for his creation.

In order to prove copyright infringement, a plaintiff has to prove two things: ownership of the copyright and copying by the defendant. Proof of copying actually involves two separate elements: use by the defendant of the plaintiff’s material as a model, template, or source of inspiration, and substantial similarity of the defendant’s work to the plaintiff’s material. “Independent creation” is a defense in an infringement action in which the defendant maintains that the work was not modeled on or inspired by the plaintiff’s material and any similarity resulted from chance or happenstance.

People associated with the Chinese sculpture claim that it was inspired by drops of petroleum, an important element of their local economy, and they say that any resemblance to Mr. Kapoor’s Cloud Gate is purely coincidental. But, in a case like this one where the copied work is world-famous and on public display, not to mention included in thousands of selfies and other phone camera shots, it would be difficult to succeed with the argument that the creators of the Bubble did not know about the Bean and have the opportunity to copy it. So very probably, under U.S. law, the Bubble infringes Mr. Kapoor’s copyright. What he can do about the infringement is a different question, and his efforts to enlist help from the City of Chicago to wage a campaign of some kind have so far been unsuccessful except to the extent of generating publicity for both works.

Adria LaRose wrote about a similar copyright issue in her post to this blog on June 1 discussing “fair use.” There is a difference here, however – fair use involves an admission by the defendant of copying of the plaintiff’s work, while the position of the Karamay side in this case is that there was no copying.

Photos of both of these interesting works can be seen at this link: http://www.amusingplanet.com/2015/08/the-oil-bubble-chinese-knockoff-of.html