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.Â The commercial shows bright orange fabric covering buildings, dams, beaches — basically the entire US.Â You know what happened next:Â 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.Â Â 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?Â –Â 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.Â Whatever copyright they may own in The Gates, that copyright related to a work that was site-specific in the extreme.Â 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.Â The disclaimer may or may not be required legally, but it makes sense culturally.Â When I saw the ad the first time, I wondered whether Christo had something to do with it.Â Even if copyright isn’t (or shouldn’t) be at stake here, there is a kind of trademark interest at work:Â 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.Â Â 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.Â I have a lot of sympathy for that view.Â Â 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:Â He and his wife very publicly and repeatedly challenged the idea that “art” was or should be distinguished from our experience of the everyday.Â We — the public — were always a part of their processes and their works.Â They *gave* us that concept and they gave The Gates, in a very literal, public — and I think, beautiful — way.Â AT&T may be behaving loutishly by using those gifts as it is,Â not paying the gift forward but re-purposing theÂ gift for selfish purposes.Â But once a gift is given, if it is truly a gift, then it cannot be taken back.