COOK COUNTY RECORD

A federal judge has decided a copyright court fight over the use of imagery of Chicago's public sculpture, locally known as "The Bean," between its sculptor and the National Rifle Association belongs in the federal court nearest the NRA's suburban Washington, D.C., headquarters, and not in the Windy City, a few blocks south of the sculpture.

Anish Kapoor created “Cloud Gate,” the Millennium Park sculpture known colloquially as “The Bean.” In a complaint filed June 19 in federal court in Chicago, he said the NRA used images of his sculpture in a video it published June 29, 2017 — titled alternatively “The Clenched First of Truth” or “The Violence of Lies” — doing so without permission and further refusing his request to scrub those images from the video.

The NRA moved to have the complaint either dismissed for lack of personal jurisdiction or transferred to the federal Eastern District of Virginia. Kapoor, who is based in London, opposed that motion by moving for jurisdictional discovery. In an opinion issued Oct. 23 in Chicago, U.S. District  Judge John Lee denied Kapoor’s motion and opted to transfer the complaint. 

Anish Kapoor

Kapoor said he registered “Cloud Gate” with the U.S. Copyright Office on Jan. 4, 2016, and never granted the NRA the right to use the sculpture in its materials. He said he made direct contact with the NRA on June 30, 2017, and issued a “widely publicized” open letter on March 12, 2018, making “clear his extreme objection to such usage.”

The NRA said it shouldn’t be subject to specific personal jurisdiction because the “video was distributed nationwide and did not specifically target Illinois.” Kapoor maintained the act of obtaining unauthorized “Cloud Gate” video took place in the state. And though the NRA also held the video was taken by a contracted advertising agency photographer, Kapoor asserted that employee was acting as an agent of the NRA.

Lee said the NRA wants the case moved to Virginia because that is where it and its employees are located, where they made decisions about the video and where pertinent evidence is stored. The NRA noted Kapoor has no connection to either Chicago or Virginia. Lee agreed the Virginia district “is a more convenient forum in which to litigate the case.”

Since NRA headquarters are in Fairfax, near Washington, D.C., “many of the likely witnesses in this case work at the NRA’s headquarters or nearby,” Lee explained, also giving credence to the NRA’s evidence showing cases move more quickly through the Eastern District of Virginia than they do Chicago’s federal courts. He also said the NRA “correctly contends that Virginia has an interest in a dispute concerning the rights of its citizens to free speech.”

Ultimately, Lee said the only favor in Kapoor’s factor is that “Cloud Gate” itself is in Chicago, which is not enough to keep the complaint in Illinois.

“Certainly the residents of this district are justifiably proud of the Bean,” Lee wrote. “What is more, the Bean is a very popular tourist attraction. However, whether such general public interests have any relationship to the issues raised in this lawsuit — Kapoor’s copyright versus the NRA’s First Amendment right to advocate its view of the Second Amendment — is less clear. And Kapoor has not provided any authority to support such a contention.”

In addition to a jury trial, Kapoor seeks statutory damages of $150,000 per willful infringement of his trademarked property, as well as court orders preventing the NRA from future use of images of the sculpture. He also calls on the NRA to account for any profits attributable to the use of “Cloud Gate” in the ad and to pay him that money.

Representing Kapoor in the matter are lawyers from Phillips, Erlewine, Given & Carlin, LLP, of San Francisco; and Swanson, Martin & Bell, LLP, of Chicago.

The NRA is represented by attorneys Blaine C. Kimrey and Bryan K. Clark, of Vedder Price PC, of Chicago.