Does an artist have the right to withhold their work when they don’t agree with the political message?
On June 19 of this year, artist Sir Anish Kapoor, a knighted and “renowned visionary sculptor,” filed a copyright infringement claim in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the National Rifle Association (NRA) used a fleeting image of one of his sculptures without permission in a video in order to “support its despicable platform of promoting violence, private ownership of all manner of firearms in the United States, including military assault weapons, and using its money and political power to block any kind of meaningful gun control.”
Normally we would have another run-of-the-mill copyright and appropriation dispute concerning art. However, what is a bit unusual about this dispute is how Sir Anish chose to voice his politics and disagreement with the NRA by availing himself of US Copyright law. Whether Sir Anish should leverage a law meant to foster and incentivize creativity and debate to instead silence and censor speech is the question before us. Put another way, does US Copyright law grant a copyright owner the sole and exclusive right to control how their copyrighted work is used?
In general, the answer is yes. Under the US Copyright Act of 1976 (the Copyright Act), the owner of a copyrighted work has, among other rights, the exclusive right to (a) make and authorize reproductions of the work, (b) make and authorize derivative works based on the copyrighted work, (c) the distribution of copies of the work by sale, rental, lease, lending, or transfer of ownership, and (d) publicly display and authorize the public display of the work.
The Copyright Act does not, however, grant a copyright holder the right to keep a third party from using the copyright holder’s work based on the political nature of that third party’s speech. The reason for this is found in fair use doctrine of the Copyright Act.
... we must also keep in mind that by the time the first NRA video aired on April 7, 2017, Sir Anish had already made public his criticism of President Trump by creating a “protest” artwork poster riffing on artist Joseph Beuys, “I Like America and America Doesn’t Like Me,” written in pseudo Antiqua-Fraktur font commonly associated with Nazi German media. According to an Artnet article of February 1, 2017, Sir Anish articulated, “‘I call on fellow artists and citizens to disseminate their name and image using Joseph Beuys’ seminal work of art as a focus for social change,’ said Sir Anish in a statement. ‘Our silence makes us complicit with the politics of exclusion. We will not be silent.’” The NRA’s use of Sir Anish’s own artwork to critique and comment on Sir Anish’s own political criticism of President Trump would not be farfetched.
Taking advantage of First Amendment protections of political speech, it is quite plausible that the NRA is appropriating content it deems necessary to make its point: That in the United States, the “liberal media” and certain cultural institutions, including some artists and artworks, function to propagate lies and hateful speech against the NRA, gun owners, and those that believe in the Second Amendment to the United States Constitution