According to Section 101 of the Copyright Act under VARA, a “work of visual art” is-
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of two hundred copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, a multiple cast, carved, or fabricated sculptures of two hundred or fewer that are consecutively numbered by the author and bear the signature or the identifying mark of the author.
Under this definition Jeff Koons work “Balloon Dog” falls under the legal definition of protected copyrightable work.
Many important elements factor into the case of the “Balloon Dog” bookends. To begin with “Balloon Dog” is a work of original authorship meaning that it was an original work, and was fixed in a tangible medium. There was no work that resembled sticking similarities to Koons “Balloon Dog” before he began to construct them, meaning they are original works. When Park Life and Imm-Living began manufacturing and distributing these scaled down models of Koons’s work, calling them “bookends” the issue of infringement is raised. Infringement is a violation of any of the artist six exclusive rights, whether it was intentional or negligent.
In this case substantial similarity is the issue that could be raised between the two works. Because the lawyers representing the bookends said that there was no prior knowledge or access to Koons’s work, there is no case on willful copyright infringement. The bookends are made of a painted resin, come in matte colors, are slightly less bulbous, and are not to the same scale as those of “Balloon Dog.” Koon’s pieces are a much larger (although Koons did make pieces in comparable size to the bookends) more spherical and rounded and have a reflective sheen color. Another piece to look at is substantability in relation to the whole-part or whole, meaning how much was taken and how much was used. In this case the entire idea of the...