A little over a month ago, AT&T released a TV commercial that is based on the idea that AT&T “blankets” the US with the coverage of its cellular network. The commercial shows bright orange fabric covering buildings, dams, beaches — basically the entire US. You know what happened next: Loud complaints from fans of the artists Christo and his late wife, Jeanne-Claude, who wrapped buildings, islands, and bridges and who installed their Gates — featuring bright orange fabric — in Central Park.  AT&T added a disclaimer to the end of the commercial, which is still being broadcast, but otherwise declared its unwillingness to pay for what appears, to some, to be an appropriation of Christo’s — what? – style?.
What’s the problem here?Â
In my view, AT&T clearly has not infringed any copyright owned by Christo and Jeanne-Claude; it has not copied The Gates or produced something that is substantially similar. Whatever copyright they may own in The Gates, that copyright related to a work that was site-specific in the extreme. Elementary copyright principles tell us that no one owns the idea of wrapping buildings, bridges, or islands; no one owns the idea of installing bright orange fabric in public places; no one owns all manifestations of the metaphor of fabric-based coverage or gates (small-g).
Yet the AT&T ad, because it uses a certain color and because of the way that its digital artists “wrap” buildings, unmistakably evokes the work of Christo and Jeanne-Claude. The disclaimer may or may not be required legally, but it makes sense culturally. When I saw the ad the first time, I wondered whether Christo had something to do with it. Even if copyright isn’t (or shouldn’t) be at stake here, there is a kind of trademark interest at work: AT&T is using Christo’s distinctive style — what might be called Christo’s trade dress, but for the problem of functionality in trademark law.Â
I have little sympathy for claims that copyright protects a creator’s “style,” rather than particular works, although I know that these claims pop up from time to time and, occasionally, a court buys one.  Trademark law is a little more helpful, but only a little. Relevant cases include Gallerie Furstenberg v. Coffaro, 697 F. Supp. 1282 (S.D.N.Y. 1988) and Romm Arts Creations, Ltd. v. Simcoe International, Inc. 786 F. Supp. 1126 (E.D.N.Y. 1992).
A careful trademark lawyer might argue that as distinctive as Christo’s work has been, and even setting aside the problem of functionality, the style has not been used to identify a product or service — the style is itself the product. I have a lot of sympathy for that view.  In a way, and both legally and culturally, Christo is a victim here of the very success of what has always been controversial from an art world point of view: He and his wife very publicly and repeatedly challenged the idea that “art” was or should be distinguished from our experience of the everyday. We — the public — were always a part of their processes and their works. They *gave* us that concept and they gave The Gates, in a very literal, public — and I think, beautiful — way. AT&T may be behaving loutishly by using those gifts as it is, not paying the gift forward but re-purposing the gift for selfish purposes. But once a gift is given, if it is truly a gift, then it cannot be taken back.
AT&T ad:
Bonus video:Â 2007 advertisement from Bosnia that is suspiciously similar to AT&T’s.
Related thoughts here (Donn Zaretsky on protecting artistic style, vis Dale Chihuly), and here (Frank Pasquale, vis Thomas Kinkade).
Strikes me that this sounds more in the right of publicity than in trademark. (Of course, these become the same in the antidilution space, which is effectively a right of publicity for famous marks.) The publicity-rights jurisprudence has struggled with evocation, and the prudent reach of ‘indicia of personality/identity.’ The high water mark is the Vanna White case. There’s less obviously a way to soften the blow with publicity than with copyright (attribution) or trademark (disclaimer).
There’s no IP claim here that I’m aware of — a court would have to invent it.
The only downside for AT&T is an adverse verdict in the court of public opinion (I guess — though I can’t imagine a boycott!).
It is onteresting to see the comments on the Post site, from:
“to exploit an artist’s life work in this way [is] beyond acceptable” to
“On a related note, Christo filed a class action suit against everyone in America who has an orange shower curtain.”
I don’t know, Greg. This strikes me as a plausible false endorsement claim along the lines of Waits – if people recognize this style and associate it with Christo, then I don’t see why this is any different than imitating a distinctive voice.
I don’t know, Greg. If in fact viewers of the commercial associate the style with Christo, this strikes me as a decent false endorsement claim along the lines of Waits. Maybe that’s a criticism of Waits, but this doesn’t seem to me to be a non-starter.
One of the things that is interesting to me here is that the critical outcry over the AT&T ad, such as it is, does *not* seem to track the contours of a false endorsement (i.e., Waits-style) claim. I haven’t done an exhaustive search, but in casual searching I haven’t seen the claim that consumers (and/or art world-ers) infer that Christo has endorsed AT&T or the ad. Rather, the prevailing assumption in the public mind (again, such as it is) has been that Christo did not and would not align himself with AT&T in this way. Therefore, the argument continues, there must be some version of “appropriation” going on.
Relatedly, consumer perception seems to favor the idea that Christo’s work is being used. Compare Waits, where the claim, at least, focused less on Waits’s work and more on Waits himself.
Mark — In my reading, Waits was really about the voice, pretty much like Midler. There’s even some stuff earlier in the opinion suggesting that a voice/style distinction prevents any confusion with copyright (vis a vis ROP, though), which would be an issue here.
I suppose you could turn this into a TM-endorsement (Vanna White robot) or a ROP (Motsenbacher) case.
If I wanted to stretch it, personally, I’d rather see it as a R&R Hall of Fame TM case (taking the dissent’s view), since what seems to be happening here is that people see the “mark” and assume there should be no license to use it without the artist’s permission. So it’s sort of like a merchandising situation, in my view, but without a defined logo.
That said, this just shouts idea/expression to me — the orange show curtain comment seems completely on target. Which is why I can’t possibly see a court letting it get past a motion to dismiss.
But yes, you’re right — it’s possible!
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