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We examine what happens when an expression of imagination crosses the line of copyright, and if art itself can be considered intellectual property.

Intellectual property is defined as “a work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark.”

Art is loosely defined as “the expression or application of human creative skill and imagination.”

So what happens when an expression of imagination crosses the line of copyright? Can art itself be considered intellectual property? How does one place value on a piece of art in the same way one would a commercial product, subject to patent? Is the application of a priceless piece of art’s likeness on to a T-shirt really devaluing the original?

These are some common queries being re-examined in the wake of a slew of pop-culture-meets-art experiments. In February, a lawsuit was filed by businessman Ronald Perelman claiming that art dealer extraordinaire Larry Gagosian coerced him into purchasing a Jeff Koons Popeye sculpture for $4 million USD. To the billionaire, the piece just wasn’t worth that much. Koons’ Popeye muse has continued to be the center of scrutiny. In May of 2014, it became apparent that the Popeye piece was essentially a large-scale replica of a Dark Horse PVC figurine from 2002. It later came to light that the artist had been granted permission to use the likeness of the figure — but does the fact that this “one of a kind” artwork is essentially a blown-up version of a mass-produced vinyl toy make it any less valuable? Apparently not, as it sold for $28 million USD.

This was hardly the first brush Koons has had with copyright law. Back in 1992, he got himself into trouble for a sculpture called String of Puppies. The piece, which featured a man and woman holding a group of puppies on a bench, was “inspired” by an image taken by German photographer Art Rogers. Hardly a Koons of his craft, Rogers sold the photo to be used on a series of greeting cards, one of which caught Koons’ eye. He removed the copyright label from the postcard and told his assistants to scour every detail for his large-scale piece, which was nearly identical except for the fact that the puppies were made to be blue. Rogers sued and won. The United States Court of Appeals found that “an artist copying a photograph could be liable for infringement when there was no clear need to imitate the photograph for parody.” Koons sold three of the sculptures for a total of over $350,000 USD.

If any popular brand walks the line between art and IP infringement, it’s Supreme. Utilizing a method described in a 2013 New York Magazine piece as “Take a pop-culture icon, maybe mess with it, maybe don’t, slap it on a T-shirt. Charge $40,” the skate shop has transformed itself into, debatably, the #1 trendsetter in global streetwear. Serving as a cultural translator of sorts, the brand seems to pride itself on introducing a set of young, clothing-obsessed male devotees to zeitgeists they’ve most likely never heard of before, but can now lay claim to. Marilyn Minter, Nate Lowman, Damien Hirst, Takashi Murakami, KAWS, George Condo and, yes, even Jeff Koons have all designed skate decks for Supreme. Shirts have been emblazoned with the likes of Sophia Loren, Miles Davis, Bruce Lee, Jean Michel Basquiat, Kate Moss and Kermit the Frog. Most recently, Peruvian painter Boris Vallejo, artist/musician Mark Flood and storied American haberdasher Brooks Brothers have collaborated with the label. Supreme has designed products alongside Timberland, Vans, The North Face, Zippo, Clarks, Playboy, Everlast, Umbro, Levi’s, Schott, Public Enemy, Nike, COMME des GARÇONS, the estate of Keith Haring, Oakley, visvim, Budweiser and more.

Supreme’s legacy of appropriation has roots all the way back in its logo, which is derived from the work of contemporary artist Barbara Kruger. It’s in plain view of the brand’s penchant for relying on others for the brunt of its creative output that the conversation becomes complicated. The introduction of a host of counter culture icons and artistic visionaries to a consumer eager for knowledge and relevance is a commendable act. The brand’s mission is abundantly clear in its no fucks given attitude and savvy approach of staying relevant via controversial cultural “borrowing” and de rigueur partnerships. The shop has, however, openly paid for the use of certain logos and fonts, as with its spin on the Los Angeles Kings lock-up, for example. It did not spend a dime on it’s now cult-status original Kate Moss tee, which is a 1:1 reproduction of a Calvin Klein ad, or its swipe of New Yorker mascot Eustace Tilley.

Yet when Supreme caught wind that Married to the Mob had famously attempted to “pull a Supreme” and rip-off the brand’s iconic red box logo — they sued for millions of dollars. In addition to the counter-intuitive decision’s effect on the label’s rebellious brand ethos, the suit prompted Barbara Kruger herself to make a statement, which included the sentence “what a ridiculous clusterfuck of totally uncool jokers.”

The rules are shaky. Yet when an artist can be held liable for copying when there is “no need to imitate” a photograph, it becomes abundantly clear that most of Supreme’s antics are at least legally opaque, at worst a pinnacle example of IP piracy. Few brands, people or artists, however, have sued. Even Louis Vuitton, one of the fashion industry’s staunchest proponents of intellectual property, merely issued a cease and desist but chose not to further pursue the matter in court. Remaining decks were destroyed. LV’s clout was protected. That was that.

Maybe this is because few want to hold a brand like Supreme liable, since its adoption of a persona or piece of art is actually one of the greatest cultural co-signs one can get. Supreme means relevance. It means an introduction to a new category of potential fans and consumers. It means kids wearing your emblem, your face or your art across their chest as a badge of honor. So, as with Koons’ perpetual play on the meaning of art, Supreme has managed to carve out a niche wherein infringement of IP isn’t a crime, but rather an award. Congratulations — we’re ripping you off.

Nonetheless, Supreme has turned to impressionist painters as its latest source of inspiration. This winter’s hoodies were stamped with Manet’s The Luncheon on the Grass and Le Bain.  Are they out of relevant pop culture memes, or has their taste simply drifted towards the more esoteric, and less legally dangerous? Only time will tell.

Words by Douglas Brundage
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