The Bean and the Bubble

ANISH KAPOOR has been making headlines on both sides of the Atlantic. In June, one of his sculptures on display in the garden of the palace of Versailles, which he described as “the vagina of a queen taking power”, was spray-painted by vandals. This month he is in the news because the city of Karamay in western China is unveiling a sculpture that looks very similar to “Cloud Gate”, a 110-tonne stainless-steel structure nicknamed the Bean, in Chicago’s Millennium Park, that is popular with Chicagoans and tourists alike.

In both instances Mr Kapoor, a Mumbai-born British artist, reacted grumpily. The act of vandalism “represents a certain intolerance that is appearing in France about art”, he told Le Figaro, a French daily, adding that he saw this mainly as a political problem. And he fumed that the making of the sculpture by an artist whose name Karamay city officials are not releasing was a blatant act of plagiarism. “In China today it is permissible to steal the creativity of others,” he said, vowing to take his grievance to the highest level and pursue those responsible in court.

Mr Kapoor expressed hope that the mayor of Chicago, Rahm Emanuel, would join him in his crusade for his copyright. Yet Mr Emanuel took a very different view of the Karamay version of the Bean. “Imitation is the greatest form of flattery,” he said. “And if you want to see original artwork…you come to Chicago.”

In visual and other forms of art, a copy of an artwork is an infringement of copyright, whereas using elements of others’ copyright-protected work can be permissible under the “fair use” provision of American copyright law. In 2013 Richard Prince, an American artist, won a landmark case when an appeals court overturned a decision that he broke the law when he used photographs from a book about Rastafarians to create a series of paintings and collages. Mr Prince had argued that his appropriation of the photos should be permitted under the fair-use provision.

Determining “fair use” is complicated and to some extent subjective, but a prerequisite is that the artist accused of borrowing (or stealing in the Kapoor controversy) admits to using another artist’s art. That is not the case with “Big Oil Bubble” as the Karamay sculpture is called. Its defenders say that it was inspired by the city’s natural oil well (Karamay means black oil in Uighur, the local language) and that the blobs around the sculpture represent little oil bubbles. However similar to the Bean it looks, any resemblance to Chicago’s sculpture is coincidental, they claim.

The Karamay sculpture very probably infringes Mr Kapoor’s copyright, says Eduardo Peñalver at Cornell Law School, but what has actually been stolen from him? The Chinese are not printing T-shirts with the Bean or selling miniature statues of the sculpture. If anything, they are paying homage to the original as they did when replicas of the Eiffel tower were built in the cities of Shenzhen and in Hangzhou. Guangdong province has a clone of the entire Austrian village of Hallstatt.

When the good burghers of Hallstatt found out about a Chinese mining tycoon’s plans to build a copy of their Alpine jewel in 2011, they were surprised and scandalised. The Chinese had charged ahead with their duplicate without telling anyone in Hallstatt, let alone ask for permission. Yet soon they came to see the advantages of having thousands rather than a few dozen Chinese tourists visit their town, eat their schnitzels and stay at their inns every year. Perhaps Mr Kapoor too will eventually come to see the bright side of the cloning of his Bean.