At last year’s Art Basel Miami Beach, we learned an important lesson: In the game of conceptual art, it pays to listen to the dealer’s pitch. This point was brought home to us at Jeffrey’s booth, where the dealer was exhibiting Fair Ball, a pale green baseball resting on a simple plywood plinth. Jeffrey and his rookie artist, Barnaby “Babe” Woof, wanted to know if the work could be copyrighted, since they planned to make millions by selling thousands of balls. Or was it thousands selling millions of balls?   

Because of the short shrift copyright law gives to contemporary art, we thought their plans wouldn’t fly. On the one hand, the law protects original works that demonstrate even a slight amount of originality. According to the Supreme Court in a case that denied copyright protection to a telephone directory, “The vast majority of works make the grade quite easily, as they possess some creative spark.” On the other hand, we questioned whether Fair Ball met even this low standard.

The dealer was indignant, insisting that Babe’s work was a commentary on the leisure class’s mindless flocking to Miami and that its color referred to the huge sums of money spent by big-league collectors. The catch, we explained, is that the law distinguishes between ideas, which no one can copyright, and expressions of ideas, which are copyrightable if they are original. The law’s intent is to encourage people to make original works without unreasonably restricting those who want to build on the creations of others.

In our case, we feared that the expression of the artist’s idea—a green ball—was not sufficiently original to be copyrightable. Similarly, an abstract piece, such as Kazimir Malevich’s White on White, 1918, a monochromatic white canvas, might not be copyrightable, even though the idea behind it—absolute purity of form and color—is creative. Minimalist art often fails the law’s idea/expression test, since typically it is the concept, rather than the creation, that is original.

American courts routinely deny copyright to simple shapes and colors. For instance, in the 1958 decision Bailie v. Fisher, the U.S. Court of Appeals for the District of Columbia denied copyright protection to a cardboard star that had been devised by two artists who considered it a true work of art. Although they sought to register only the star shape, it was actually part of a larger device: The star had a circular center showing the photograph of an entertainer. A transparent phonograph record was superimposed over the photograph and played the pictured person’s voice.

In a 1985 case, Arthur v. American Broadcasting Com­panies, Inc., an artist claimed that abc’s logo showing the Olympics’ interlocking rings imposed over the letters A, B and C was copied from images he had sent to the broadcaster. The court sitting in the Southern District of New York dismissed his claim on the grounds that conjoined circles are noncopyrightable ideas: “These bare outlines of five interlocking rings, the upper three of which have been modified to a lower case A, B and C, contain no more than the bare idea or concept of superimposing the two logos.” The court also noted that the International Olympic Committee has “exclusive rights to the interlocking rings.”

Artists may nonetheless copyright geometric shapes that are combined in a unique fashion. In Runstadler Studios, Inc. v. MCM Ltd. Partnership, the District Court for the Northern District of Illinois held in 1991 that Spiral Motion, which Runstadler Studios built of 39 glass rectangles arranged in a spiral, qualified as an original work that could be legally protected: “The choice of location, orientation and dimensions of the glass panes, and the degree of arc of the spiral, show far more than a trivial amount of intellectual labor and artistic expression.”

“Is the sculpture less copyrightable because it can be used as an ordinary ball?” Jeffrey asked smartly.