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AT&T Rethinks What’s Possible: IP in Style

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? 

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. 

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:  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).