The British artist Anish Kapoor, sculptor of the iconic Chicago art piece Cloud Gate, known colloquially as the Bean, filed suit against the National Rifle Association (“NRA”) for using imagery of Cloud Gate in online videos without his permission. Kapoor registered Cloud Gate with the U.S. Copyright Office in January 2016, and was “shocked and outraged” to learn the image of his work was featured in the NRA’s videos, which he described as “a clear call to armed violence against liberals and the media” in his June 2018 complaint. Kapoor’s complaint also details his attempts to have Cloud Gate images removed from NRA media, including through an open letter that was published by news outlets nationwide. Kapoor seeks an injunction to bar the NRA from continuing its allegedly unlawful conduct, $150,000 in damages for each infringement proven during trial, and disgorgement of any NRA profits obtained as a result of the video.

The case has not progressed on the merits since its filing, as the parties have been battling all summer and into the fall over which court should hear it. Now, the parties await the Northern District of Illinois’ decision whether to retain jurisdiction over the case or transfer it—as the NRA has requested—to the Eastern District of Virginia. The NRA’s motion to transfer and Kapoor’s motion for jurisdictional discovery both remain pending.

Takeaway: Advertisers should take care to seek permission from copyright owners before using any copyrighted works, especially in any political or potentially inflammatory advertising.