Photos Courtesy Eric Swanson and SITE Santa Fe
On left is Cai Guo-Qiang’s “Nine Cars,” gunpowder on rice paper. On right is Cai Guo-Qiang’s “Innopportune: Stage Two, 2004,” the tigers are made of papier mache, plaster, fiber glass, resin and painted hide. The arrows are made of brass, bamboo, feathers and bronze. On the wall to the left of the tiger is the artist’s drawing of “Tigers with Arrows 2005,” gunpowder on paper.

The work of Chinese-born artist Cai Guo-Qiang is explosive. Literally. The artist’s primary media are gunpowder and fireworks. Creating art with explosives may seem inappropriate given the almost daily news of car bombings and terrorist activity, but it is precisely this terrorism that Qiang addresses in his installation at SITE Santa Fe called “Inopportune.” For Cai, an explosion need not be destructive. An explosion can be creative, beautiful and even restorative.

Cai Guo-Qiang began his artistic career as a stage designer for the Shanghai Drama Institute. Entering the main gallery at SITE is like entering an elaborate stage production. Nine tigers, created from papier mache, plaster, fiberglass, resin and painted hide, are pierced with hundreds of bamboo arrows. The tigers prepare to pounce, some writhe in pain, while others hover in the air, contorted, distorted, attacked. Are they villainous tigers attacked by heroes or heroes attacked by villains? The answer is mutable. The idea of finding a tiger on the street in China is a symbol of unfounded fear. In numerology, the number nine represents aggressive action, penetration, courage and conflict. It also represents regeneration.

The spectacular drawings are made by exploding gunpowder in controlled patterns on heavy sheets of Japanese rice paper.

“Nine Cars” is 160 inches by 240 inches, and the circular form of the cars suggests the closed cycle of Qi or energy. It is easy to overlook the huge circular painting as you enter SITE, but nine cars is an important image in understanding the meaning behind the arrows piercing the tigers.

“Inopportune” was commissioned for MASS MoCA in North Adams, Mass., and was installed there from December 2004 through October 2005. Cia installed nine white cars there with sequenced multi-channel light tubes like Christmas lights splaying from them. The cars were positioned as a freeze-frame capturing the movement of a car flipping over and exploding.

At MASS MoCA, one walked under and around the cars before entering the second stage of the exhibit: the tigers. The exploding cars were the protrusion. The arrows in the tigers were the protrusions piercing the natural world. Having only the drawing of Nine Cars and not the rest of the original installation diminishes the effect at SITE.

The white car also is present in the nine-foot high, 42-foot long projection titled “Illusion,” in which a phantom car bristling with fireworks moves through Times Square at night. The pedestrians are oblivious to the fireworks. It’s as if the viewer is the only one who sees the explosions. Yet the charred car used to film the fireworks explosion sits in the adjacent gallery, a real connection to fear.

A resident of lower Manhattan since 1995, Cai experienced the Sept. 11 terrorist attacks. It is that experience, he says, that made him a New Yorker. Through his work, he hopes to reconfigure the meaning of an explosion to illustrate how “Something used for destruction and terror can also be constructive, beautiful and healing.”

Laura Steward Heon, former Curator at MASS MoCA, and new director of SITE Santa Fe, curated “Inopportune.” The exhibition provides imagery to stimulate thought without prescribing what the viewer should be thinking.

If you go
“Inopportune” an installation by Cai Guo-Qiang, through March 26, $8/$4 seniors and students, free to members (Fridays are free for everyone, thanks to The Brown Foundation of Houston). SITE Santa Fe, 1606 Paseo de Peralta, Santa Fe, (505) 989-1188, sitesantafe.org.

PAGOSA SPRINGS — A creation of the mind, be it an invention, a literary or artistic work, or the symbols, names, images and designs used in commerce, is called intellectual property.

Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

The Shy Rabbit art center in Pagosa Springs recently hosted Colorado Lawyers for the Arts board member Christopher Beall from Faegre & Benson in Denver. Beall, an IP litigator, discussed the finer points of IP: Patents; Copyright; Trademark and Trade Secrets. Issues critically important for artists, writers, musicians and performers to understand, but frequently overlooked until it is too late.

This week, the Business Journal features the industrial property of patents and trademarks. In the March 20 issue we will explore legal issues for artists on the Internet. Look for further articles to cover the basics of contracts, licenses and entity formation in future issues.

In the world of intellectual property, there are other forms of protection besides copyright.

PATENT

A patent typically applies to a new non-obvious useful invention. A patent can be for something utilitarian or it can be for a new, non-obvious ornamental invention or design. Jewelry artist David Yurman owns a design patent for his cable link bracelet. A patent lasts 19 years from the date of issuance.

A patent is beneficial for an artist whose work is at risk of being knocked off in large quantities. The authority of patent allows shipments to be stopped at the border. Many artists who are finding their work copied in Hong Kong and shipped back into America and sold to mass retailers, could help themselves by applying for a patent.

With a copyright, to prove infringement, the artist, writer or musician must be able to prove that the person copying the work had access to the original. With a patent, access is not an issue. It doesn’t matter if a jewelry artist has ever seen the work of David Yurman; if they create a cable link bracelet with similar structure as that patented by David Yurman, then the patent has been violated.

TRADEMARK

A trademark is any word, name, symbol or device or combination thereof used by a person to identify and distinguish his or her goods or services from those of others and to indicate the source of the work. Trademark law is designed to protect consumers. No one can use a swoosh mark to make running shoes.

A swoosh mark prevents consumers running shoes and apparel can sport the swoosh mark.

In the United States, registration of a Trademark is not required for protection. Trademark priority is established by: 1) Being the first to use a mark for particular goods or services in a geographic area; or 2) Filing a federal application based on use, an intent-to-use, or a foreign filing that matures to registration. Trademark rights arise when the mark, name, symbol, device or combination are used regularly in the marketplace.

Trademark law protects the owner from dilution and from the likelihood of confusion. Trademarks are very clear identifiers of a product. The Coca Cola label, the Pepsi can, the Gateway computer cow box, Kodak, Exxon — only the owners of these famous marks or names can use them, and the distinctive quality of a mark cannot be tarnished, mutilated or diluted in use by another.

A simple Trademark search begins by searching the Yellow Pages for the common law use of a name or trademark. An official search to determine if a trademark is already in use costs between $600-$5,000, depending on the complexity.
Fair use of trademark is more complex than fair use of a copyright. The only clear fair use of trademark is in all forms of news reporting and news commentary. A trademark may be used fairly by another person in comparative commercial advertising or promotion to identify a competing good or service. Think Coke and Pepsi ads that use the competitors name or trademark to say their product is better.

In determining the likelihood of Trademark confusion in fair use the court looks at the distinctiveness of the senior mark; the similarity of the marks; if the goods or services are related; the consumer care at the point of purchase; the junior user’s intent; the trade channels and the likelihood that the consumer can bridge the gap; and at any actual confusion created. There are two types of fair use: (descriptive and nominative.)

Although trademark rights may be acquired in descriptive words and images, non-trademark holders may use such words in their descriptive sense, but not as a trademark. Bausch & Lomb may call their contact lens solution Sensitive Eyes Plus but a competitor may say that their saline solution is “especially for sensitive eyes.” And while Car-Freshener owns the trademark in pine-tree-shaped car air fresheners, the court said that it could not stop S.C. Johnson from shaped like pine trees where the shape was being used to refer to the pine scent of the product and not as a source identifier.

Mattel sued the musical group Aqua for trademark infringement because of their song, Barbie Girl. The court upheld that when the only word reasonably available to describe a particular thing is a trademark, others could use the mark to describe the thing. What other word is there to describe Barbie? The court agreed that the band could not effectively comment on the Barbie doll without mentioning her name. The CD liner notes stated that Mattel did not approve the song. The band did not include an image of a Barbie doll and therefore did not use more of the trademark than was necessary.

What is interesting for artists to consider is that Andy Warhol’s famous Campbell’s soup cans are mimicking an exact representation of the Campbell’s trademark. Campbell’s never considered suing Warhol for trademark infringement; however, in today’s climate and market, Campbell’s could sue and would probably win a lawsuit.

TRADE DRESS

Trade Dress is the look and feel of a product, which distinguishes the product from those of others and indicates the source of the product. Chris Beall, from Faegre & Benson and a board member of Colorado Lawyers for the Arts, recently represented Denver artist Mark Becker in a trade dress violation lawsuit in New York. San Francisco based jewelry artist Jeanine Payer sued Becker for violation of trade dress. Payer, who had not copyrighted her silver jewelry hand engraved with famous quotes and poetry felt that Becker’s work was too similar to her own. Payer, who only sells ten percent of her jewelry in New York, filed the case in New York because the court system is more favorable for artists. However, Payer lost her case because the New York jury did not believe consumers would be confused by Becker’s work and were differences the jury felt significant. Becker’s work is rounded and Payer’s work has square corners. Becker’s silver work has a lip on the edge and Payer’s work is smooth.

In the end, trademark and trade dress laws protect their owners from dilution: the likelihood of confusion as to the affiliation, connection or association — the origin — of a good or service. To qualify as a trademark, the name, logo or symbol must be unique enough to earn customer recognition on its own or have earned continued use of time. The more distinctive the trademark, the easier it is to get the courts to stop its use by others.

For more information, or to find a lawyer, contact Colorado Lawyers for the Arts, www.lawyersforthearts.org or reach them by phone at (303) 722-7994.