DuetsBlog Collaborations in Creativity & the Law

Art-ful Disclosure?

Posted in Branding

–Sharon Armstrong, Attorney

Have you heard of “The Gates”?

How about “The Umbrellas”?

And how about the aptly named “Wrapped Reichstag”?

All three are art installations undertaken by the artists Christo and Jeanne-Claude, who have made a career of conceiving and constructing truly large-scale environmental art works often consisting of the wrapping, draping, and placing of swaths of fabric on and around the planet’s landmarks and landscapes, including the Pont Neuf bridge in Paris and the Biscayne Bay Islands off of Miami.

I have always enjoyed these artists’ works for many, many reasons, not the least of which is the simple fact that their work draws attention and focus to the existing beauty, danger, randomness, and wildness of both natural landscapes and man-made structures. The Umbrellas work in particular holds a special place in my heart; I grew up near the area at which half of this work was installed and recall how the work showed off both the beauty and the magnitude of the landscape. After seeing many of Christo and Jeanne-Claude’s works over the years (thought not always in person), I have certainly come to identify the formula of “fabric + landscape/structure = Christo and Jeanne-Claude.”

So imagine my surprise watching AT&T’s new commercial, which features swathes of orange fabric in a shade eerily similar to the fabric used in “The Gates” to some of America’s most celebrated landmarks:

Numerous viewers familiar with Christo and Jeanne-Claude have expressed similar surprise, along with dismay and outrage. Readers of blog posts about the AT&T commercial on the New York Times and the Huffington Post have pegged the ads as “desperate,” a “rip-off,” and “trademark infringement.” Readers have also expressed initial feelings of incredulity that the artists would “sell-out” to AT&T, only to determine subsequently that the artists had nothing to do with the advertisement

In apparent response to such criticism, AT&T has added a disclaimer to the bottom of the page, stating that “[t]he artists Christo and Jeanne-Claude have no direct or indirect affiliation or involvement with AT&T.” Disclaimers, however, have a mixed track-record in trademark law and are not a sure-fire means of preventing consumer confusion. In fact, depending on numerous factors – including where a disclaimer is placed or when and how consumers will view a disclaimer – disclaimers may cause confusion, rather than alleviate it.

What do you think?