Deflated Basketballs and Copyright Questions

Copyright law, much like art itself, is often extremely bizarre

When recent major copyright cases include a monkey selfie, chevrons on cheerleader uniforms, a banana costume, realistic baby dolls and wall-sized Instagram posts, you never really know what the next lawsuit could be about.

So it’s not too surprising to learn that an artist filed a lawsuit over sculptures featuring deflated basketballs. If anything, it’s just another day in the strange world that is copyright.

However, like many other bizarre cases, this one raises some serious questions. Couple that with the fact that it pits a well-known artist against an NBA team, and it’s a case that is worth watching.

So how did we get from deflated basketballs to a potentially important copyright fight? The story is remarkably straightforward, even if the questions the case raises aren’t.

The Story so Far

Artist Tyrrell Winston filed the lawsuit in late July this year. According to the lawsuit, Winston is a well-known artist famous for his sculptures featuring deflated basketballs mounted to a wall. He highlights at least eight versions that he has created, including Manhattanhenge, the 5×5 grid version that he alleges was infringed.

He claims that, in fall 2024, he discovered that the New Orleans Pelicans published several social media posts featuring a similar sculpture that was used as a backdrop for players. He claims that the company worked with an unknown artist or group of artists (identified as John Does 1-5) to produce the images. Winston also alleges that the team ignored a cease-and-desist letter he sent in October 2024.

He goes on to claim that the Pelicans had access to his work through various channels. This includes an installation at the stadium for the Detroit Pistons, a presentation of his work at the 2024 All-Star Game and as part of the permanent installation at the Rocket Mortgage FieldHouse in Cleveland, Ohio.

As such, Winston is suing the Pelicans for direct copyright infringement, vicarious copyright infringement and contributory copyright infringement. He is seeking both an injunction barring further infringement and unspecified damages.

The Pelicans have not responded to the lawsuit.

This isn’t the first recent case involving the Pelicans’ social media. In July 2024, they, along with 13 other teams, were sued over the use of music in various social media posts. The last of those lawsuits ended in May of this year as the teams opted to settle the case.

So, how good are Winston’s chances in his case? Well, there are a lot of difficult questions to answer.

Difficult Questions with Few Answers

Though the Pelicans have not responded to the lawsuit, since the case deals solely with copyright infringement, there are two arguments that they are likely to make.

The first is that the similarities between the works are not protectable under copyright, and that their posts are non-infringing. That’s a potentially interesting argument.

No one can own the concept of making sculptures with deflated basketballs or using a grid pattern to display objects. Copyright is about the specific expression of an idea, not the idea itself.

The Pelicans didn’t directly use Winston’s work; they created a new sculpture that looks similar to it. They could argue that it’s a coincidence and they were unaware of Winston’s work (a difficult argument given his popularity, where his work has been featured) or simply that their version is different enough to be non-infringing.

To be clear, there are differences. The Pelicans’ version features vertical gaps between the balls where, in all of Winston’s work, the basketballs touch each other. The lighting is also different between the two works, and there is more white space in the new version.

But you still have the overarching similarities. Both feature a 5×5 grid of deflated basketballs on a white background with studio lighting. While any one of these features may not be copyrightable by itself, all copyrighted works are made up of non-copyright-protected elements.

For example, I can’t lay claim to the alphabet. But I certainly can claim copyright in this post. The question becomes, did the Pelicans copy enough for it to be protectable? That’s a surprisingly tricky question and one that the judge and/or jury may have to decide.

The second defense is fair use. If they did copy protected elements, then the team could argue that the copying was permitted under the law. They could argue that the new works they created are transformative enough to be allowed.

The Pelicans added new context by incorporating the players and other elements. Is it enough? It’s difficult to say.

Arguing fair use, especially in such a commercial space, is a lot more difficult after the Warhol ruling. I would say that the Pelicans have a disadvantage here as well.

Still, that leaves us with a great deal of uncertainty. However, there is one case that may show the way.

This Case is Bananas

In 2021, California-based artist Joe Morford filed a lawsuit against Italian artist Maurizio Cattelan over Cattelan’s 2019 work Comedian, which featured a banana duct taped to a wall.

According to Morford, this infringed on his 2001 work Banana & Orange, which featured a fake orange and a fake banana duct taped to a vertical surface.

In the end, the judge sided with Cattelan, ruling that his work didn’t infringe on Morford’s. According to the judge, the only copyright-protected element was putting the banana’s stem on the left-hand side, something that the judge found to be insignificant and insufficient.

While this might seem to be bad news for Winston, the judge in the case noted that other elements of Morford’s work could be protected. This includes the use of the green background and masking tape, as well as the juxtaposition of the orange.

The works of Winston and Pelicans are much more similar. The backgrounds and grid layouts are the same, and both use the same medium (real basketballs). Is it enough? That’s the big question that I don’t think anyone has a clear answer to.

It’s an interesting question that should have copyright watchers curious about how this case moves forward, if it does at all.

Bottom Line

If I were to bet on the outcome, I would probably say that this one settles fairly quickly. Not only is that usually the safest bet, but there are enough difficult questions in here that both sides have a motivation to resolve this.

But if I were forced to give an edge, I would have to give it to Winston. The works are similar enough that a judge will likely find the Pelicans’ version to be a derivative work and that protectable elements were copied.

Three issues severely hamstring the Pelicans’ fair use argument. First is the Warhol ruling, which reduced the focus on transformativeness when examining fair use cases. The second point is that, given the context in which Winston’s work has been displayed and used, it is almost certain that the Pelicans’ version would harm the original market for it. Finally, the Pelicans’ work didn’t offer any commentary or criticism of Winston’s creation; it just used it as a backdrop.

Still, this case delves deep enough into issues of copyrightability and the idea/expression dichotomy to create a great deal of uncertainty.