AT&T released the TV spot “Rethink Possible” in 2010 to cries of appropriation from the internet (Page Six). It was remarkably similar to an installation in Central Park by the artist duo Christo and Jeanne-Claude titled, The Gates. Jeanne-Claude had recently passed away, but her husband and partner Christo’s lawyer complained to AT&T, prompting them to add the tag, “The artists Christo and Jeanne-Claude have no direct or indirect affiliation or involvement with AT&T,” to the end of the ad. This controversy did not go to court, which means it is up to us to weigh the evidence and answer the question: “Is this fair use, or should AT&T be liable for copyright infringement?” To arrive at a definitive answer, like all legal questions, we need to clearly define some of those terms first.
Webster’s Dictionary defines “liable” as “obligated according to law or equity” (Merriam-Webster)…
Kidding! That isn’t the term that needs defining, and what a terrible way to start a paper. No, the important thing to understand is the bundle of rights included when we talk about copyright law. These laws protect “original works of authorship fixed in any tangible medium of expression,” (U.S. Copyright Office) and allows the holder to make copies, create derivative works, and perform or publicly display their art (Packard 169). The art doesn’t need to be great, but it does need to be original, tangibly expressive, and vaguely creative (163). In the case of Christo and Jeanne-Claude, their works are all three.

The pair were born on the same day in 1935 (Block), but on opposite sides of a war-torn Europe that would eventually be physically divided by the Cold War (Brittanica). Christo managed to escape the oppressive Eastern Bloc in 1958, which is how he ended up in Paris doing a commissioned painting of Jeanne-Claude’s mother (Christo & Jeanne-Claude). The pair have been creating art of all scales together ever since. During that time, they have consistently been litigious in protecting their original works (Zheng). A frequent medium for their art were “massive cloth displays which, in their act of obscuring, revealed new understandings of how to interact with space and infrastructure” (Zheng).
Of their massive body of massive works, the piece most referenced in conjunction with the commercial is called The Gates (Page Six, Elliott, HuffPost). I’d show you a picture, but I wasn’t kidding about them being litigious. On their website, the FAQ on academic papers states, “under no circumstance can you proceed with any reproduction without the Estate’s written confirmation” Luckily the prestigious architecture and design magazine Dezeen describes it very well.

The commercial has not been featured in any architecture or design magazines, prestigious or otherwise. It was created by BBDO Worldwide, an NYC ad firm established in 1891 and whose original Park Row headquarters were a 15 minute ride on the C train from Central Park (Google), and whose present headquarters are just five blocks south (BBDO). AT&T used this spot to launch their new campaign as “a lifestyle company for the digital age” (Arnason). The commercial featured similarly “saffron-coloured” fabrics draped over massive structures in the US like the Hollywood sign, downtown Las Vegas, and the St. Louis Arch to demonstrate the coverage of their cellular network (AT&T). It is not art—it’s a TV commercial for a phone company—but wrapping cultural landmarks in fabric that is the exact same color as The Gates is certainly derivative of the works of Christo and Jeanne-Claude. Then is it copyright infringement, or could AT&T and BBDO make an argument for fair use?
The Copyright Act allows for a bit of artistic leniency called fair use in cases like criticism and education, which this definitely isn’t. There are four factors the courts look at to determine fair use (Packard 185). First, it’s more likely to be considered fair if it’s nonprofit. The AT&T marketing budget is the 4th largest of any company in the US (Arnason), so no. Packard adds, “If the new work merely supplants the original or contributes nothing to society, it is less apt to be viewed as fair” (186). Second, they look to see if it’s a factual or a creative work, because factual works are frequently cited to write other factual works (Gingold, all over this paper) while creative works are more unique. The third factor is the extent of the use, and launching an entire new brand direction for one of the biggest companies in America is pretty extensive. The last factor is the infringers effect on the value of the original, which is again a problem, as it gives the appearance that two of the most in-demand artists in the world whose pieces sell for hundreds of thousands of dollars1 are shilling for a cell phone company.
We’ve established that the ad is plagiarized enough from the works of Christo and Jeanne-Claude and that it is not a case of fair use, so can we finally say we have a case for copyright infringement‽ Maybe not. To do so, we need to prove 1) The plaintiff owns the work and 2) The defendant violated one or more of their exclusive rights (Packard, 175). We have the latter, and could probably even prove the folks at BBDO did it knowingly based on their obvious exposure to The Gates from their Manhattan offices, but I don’t think we can’t prove that Christo and Jeanne-Claude own the work. The Gates is theirs, no question, but despite being named in every article on the commercial, The Gates isn’t really the piece in question. The Gates was a similar orange color, but AT&T was orange first. It’s a complicated history, but in 2001 the Cingular Wireless brand was created with the “Jack” logo and signature orange color. They then were merged with AT&T in 2007, replacing Jack with the AT&T globe, but keeping the new color (Meyerson). Unfortunately, the color of The Gates is incidental to the situation.
The commercial is much more evocative of their earlier works anyway, like 1968’s Wrapped Fountain in Spoleto, Italy, 1969’s Wrapped Coast in Sydney, Australia, the same year’s Wrapped Museum of Contemporary Art in Chicago, Illinois, or 1972’s Valley Curtain in Colorado in 1972. All of these piece were realized before the US joined the Berne Convention for the Protection of Literary and Artistic Works which automatically protects works made after 1978, meaning those earlier and more relevant pieces did not follow the same protections.
The Berne Convention has 164 nations, including France, who recognize each others copyright laws and resolutions. Remember when I said Christo and Jeanne-Claude were litigious? In 1985, Christo sued two media companies selling prints of one of his installations. The Paris Court of Appeals found in his favor and ruled that, “the artists’ use of a silky tarp to highlight the bridge constituted an original work eligible for copyright protection” (Zheng). But then one year later he attempted another lawsuit, this time against a French advertising agency who did something very similar to the AT&T spot, but this time, “the lower courts refused to grant Christo a monopoly on the idea of wrapping buildings and trees.” The shared Berne copyright courts of the US had precedent, and Christo wasn’t able to put together a strong enough claim.
This is a real bummer, because AT&T is a real evil company. They were forced to fire the company president in 2015 after a lawsuit was brought against the CEO, the company, and the president, which ironically was based on racist texts he sent on his AT&T device. The company admitted they should have taken action sooner, as they were “aware of the offensive images for over a year” (AP). They recently settled a lawsuit for $48 million brought against them by the California government after it was discovered they had been falsely overcharging the state’s phone services for ten years (Osborne). Over the last six years, AT&T has funneled $2,053,000 through its corporate PAC to 130 of the 138 republican senators who voted to overturn the election (Legum & Zekeria).
For all these reasons, I wish that artists like Christo and Jeanne-Claude would win cases against oppressive corporations like AT&T, but after thoroughly defining the terms fair use and copyright, and examining all the case history, I have to admit that the answer to the question, “Is this fair use, or should AT&T be liable for copyright infringement?” is that AT&T isn’t liable.
Except… You know what, forget what I said earlier, let’s bust out the dictionary and write a bad paper. Websters defines the second usage of liable as “exposed or subject to some usually adverse contingency or action.” They may not be legally liable for a copyright claim, but they’ve been exposed. AT&T may win against these artists, but by doing so they’ve brought these artists to the attention of legal students and bloggers like me. Their greed and corporate funding to subvert American democracy has not gone unpunished. In researching this paper I realized I couldn’t continue to write without a serious consideration of my own values as an AT&T cell phone service customer. I am proud to say that I just switched carriers, and then I called my family and got them to switch too. AT&T will be subject to “adverse contingency” wherever we can hit them. Their actions have made them liable. We must continue to find reasons to leave them completely wrapped up in lawsuits, and like the works of Christo and Jeanne-Claude, it will be beautiful.

1. Sotheby’s is getting set in February to auction some of the works of Christo and Jeanne-Claude, and I am not kidding about hundreds of thousands. The event titled “Unwrapped, Part I: The Hidden World of Christo and Jeanne-Claude” will be hosted in Paris:
Sotheby’s is honoured to announce the sale of works from the long-time New York studio and home of internationally renowned artists Christo and Jeanne-Claude. The captivating collection invites the world to step into the private sphere of the famed artistic couple, through nearly 400 lots that showcase the range of their artistic inspirations, friendships with leading 20th century artists, and the famed studio where Christo and Jeanne-Claude projected their artistic vision to the world.
I highly suggest checking out the catalogue of lots for sale, because they are both gorgeous and egregious. Their work generally falls into 3 categories: physical pieces like paintings and sculptures, large-scale installations represented as diagrams and blueprints, and then the installations themselves which are the “realized” versions of those designs. An object like the wrapped sculpture Empaquetage is predicted to sell between €100,000 and €150,000. The Pont Neuf Wrapped, Project for Paris (this is the diagram version of the eventual realized) might be as high as €300,000, as is The Umbrellas (Joint project for Japan and USA).
The Gates, Project for Central Park, New York City is the crown jewel of the collection, and it is going to be so astronomically expensive the lot is listed as “Price Upon Request” (Sotheby’s).