Finally, Koons Won
posted by Christine Farley
Some of the most wrong-headed copyright law was developed by Post-Pop artist Jeff Koons–-by losing. It all started with Rogers v. Koons and Judge Haight (no relation & I’d deny it if there were just based on this opinion). In that case commercial photographer Art Rogers (yes, his name is Art with a capital A) sued Koons for copying his photograph of a seated couple holding numerous puppies on their laps. Koons sent the photo (he found it on a greeting card) to a art studio in Italy with instructions to reproduce it in a sculpture. Judge Haight easily ruled that this was copyright infringement and the 2d Circuit affirmed. In two subsequent SDNY cases, Koons had Judge Haight’s reasoning thrown back at him. (In these cases the photographer of “Boys with Pig” and the copyright owner of Odie were victorious.) Given Koons’ string of losses, photographer Andrea Blanch must have thought she won the jackpot when she saw her work reproduced in his collage painting “Niagra.” I don’t mean to comment on her motives, but the copyright lawyer she consulted probably envisioned attorneys fees.
There’s much to comment on here, including what the opinion does to fair use doctrine (especially transformative use & the parody/satire dichotomy) and what it does to the law’s treatment of appropriation art. But since I’ve written about these cases before, I’ll confine my post to an analysis of why the court reached a different conclusion in this case. As I read the opinion, I kept wondering why earlier Koons courts could not have taken the same approach. Let me first set out what’s the same in these cases. Koons has stuck with the same lawyer throughout, all the litigation has been in the 2d Circuit (SDNY), and this plaintiff’s profile is similar to Art Rogers’.
Now for the differences: 1) Here the plaintiff’s photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. In both the district court and 2d circuit opinion, plaintiff’s photograph is characterized as not being creative. (This affects the analysis under FU factors 2 & 3.) And as an advertisement, these courts are able to easily contrast it’s objective and message with Koons’ objective and message, thereby aiding Koons’ argument that his use is “transformative.” 2)The court “gets” Koons’ work. In the 1st Koons case, Judge Haight’s lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons’ 1st career was as a commodities trader & how he hires other artists to make his work.) After that, the 2d Circuit and subsequent SDNY courts replayed that assesment without any further opportunity for Koons to explain his work. The district court in this case produced a short opinion heavy on block quotes, including many from Koons’ affidavit. Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to “raw materials” such as Blanch’s photography.
In the end, justice was done here both to Jeff Koons and to the fair use doctrine. Unfortunately, the price of this legal success may be Koons’ status as bad boy of the art world. The doctrinal fit is so cosy that his work feels staid. It doesn’t push boundaries; it doesn’t piss off judges. His work is no longer illegal art, and, if we take him at his word that he’s created an entirely new work out of raw materials, it may not even be properly deemed appropriation art.
November 6, 2006 at 3:57 pm
Posted in: Culture, First Amendment, Intellectual Property
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Responses (6)
Kaxxell - November 6, 2006 at 4:37 pm
I think that Koons’ focusing on the art object itself and the art market created an anti-Warhol situation where Koons could ridicule the establishment by using advertising auras to sell Art which the “art world” would deem vulgar. In creating this tension between the cultured (upper class) and vulgar (lower class) the ridiculing is at the expense of the upper class and the upper class is what the legislative branch has charged the federal courts with protecting. Koons’ business background (long sneered upon by old money) provides him with the tools to understand how to impact of the market of art. Now, as a victim of the courts, Koons has set himself up to sell his victim-hood (which is more palatable to the upper class) in exchange for the “bad boy” image that threatened the establishment. Thus, the court has created a whole new image that is no longer vulgar, but within the class of art that is more marketable.
Frank - November 7, 2006 at 6:52 am
Your point about advertising being less respected by the court reminds me of a recent note in the Harvard Law Review called “Against Copyright in Advertisements.” It’s interesting how the Fair Use doctrine can be used to smuggle in the type of aesthetic or moral distinctions banished (in the copyrightability context) by Bleistein.
This work did strike me as being more transformative than the puppies, if only because the plaintiff’s photo is only about a fourth or a fifth fo the Koons work, whereas the puppy photo pervaded the sculpture. However, I know there are some interesting cases about 2-D to 3-D transformations, and perhaps those were driving the analysis of the puppies.
Christine Farley - November 7, 2006 at 11:32 am
Frank, in my article “Judging Art” I use the previous Koons cases to make just that point about how aesthetic judgements guide the courts through the 4 FU factors. You would think that the observations you make about the differences in Koons’ art and the work he copies would be more determinative. In fact, in the “puppies case” the court was unimpressed with the change in medium or dimension, and in this case the courts did not linger long on an analysis of the differences between the works.
Matt - November 7, 2006 at 5:37 pm
One more difference is that the other Koons cases were pre-Campbell. I think Campbell took a more liberal approach to appropraition and fair use generally than Rogers. Whereas Rogers held that “the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work,” Campbell held that where “the commentary has no critical bearing on the substance of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness diminishes accordingly (if it does not vanish), and other factors…loom larger.” This opens the door for decisions like Blanch.
Andrew Kenyon - November 7, 2006 at 7:45 pm
Finally – the artist (and his lawyer) must be happy! Thanks for the post Christine. One point that might interest US readers is that Australia looks set to introduce a copyright exception for “parody and satire”. Australian law doesn’t have fair use; instead, it has comparatively limited fair dealing exceptions for some research or study, news reporting, criticism and review. Uses like Koons’ would not come within these exceptions. But the proposed parody and satire exception is likely to be broader than fair use, and may well allow wider artistic practices more easily than the US cases.
ANDREA BLANCH - December 17, 2006 at 3:35 pm
THIS IS NOT AN ADVERTISEMENT BUT AN EDITIORIAL SHOOTING FOR A FASHION MAGAZINE; THERE IS A BIG DIFFERENCE. ALLURE ASKED ME TO CREATE A STORY WITH
IMAGES TO SHOW EYE MAKE-UP, LIPSTICK & TOE NAIL POLISH. I DECIDED TO DO THIS ON THE SET OF AN AIRPLANE, WHICH WAS CONSTRUCTED IN A STUDIO. TO SHOW
THE POLISH I THOUGHT IT WOULD BE PROVOCATIVE TO HAVE
THE MODELS LEGS ON THE MAN’S LAP; I ASKED HER TO LET
THE SHOE DANGLE OFF HER FOOT, WHICH GIVES THE PHOTO MORE NUANCE. APRRARENTLY KOONS THOUGHT SO TOO, BECAUSE HE COPIED IT EXACTLY. THE SHOE WAS CHOSEN OUT OF MANY BECAUSE IT LOOKED THE BEST ON THE MODELS FOOT & SHOWED THE POLISH OFF THE BEST.
WHAT DID KOONS DO, COPY 4 PAIRS OF LEGS FROM OTHER
ARTISTS, HAVE HIS ASSISTANTS PAINT THEM ON A CANVAS & CALL THAT TRANSFORMATIVE, COME ON. THE
PHOTO WAS COPIED DOWN TO THE SHADOWS.
I BELIEVED CONDE NAST HELD THE COPYRIGHT, I BELEIEVED THE COPYRIGHT WAS MINE. IF I NEEDED TO COPYRIGHT EVERY PICTURE THAT’S BEEN PUBLISHED OF MINE, I THAT WOULD LEAVE ME NO TIME TO CREATE.
I AM NOT AGAINST THE ART OF APPROPRIATION, I’VE
SEEN GREAT ART DONE THIS WAY. I TRY VERY HARD TO BE ORIGINAL & NOT APPROPRIATE FROM OTHER PEOPLE,
ESPECIALLY IF THEY’RE LIVING. I MAKE MY LIVING
FROM MY IDEAS; WHY SHOULD PEOPLE WHO APPROPRIATE
THEM & GET PAID 2,000,000,000 FOR A PAINTING WHICH USES MY PHOTOGRAPH NOT ASK ME FOR PERMISSION. I
GOT PAID 750.00.
I BELIEVE THIS RULING IS DANGEROUS FOR ALL PHOTOGRAPHERS & OTHER ARTISTS FOR IT MAKES IT
EASIER FOR OTHERS TO INFRINGE ON AN ARTISTS WORK.
AND WHO ARE THE JUDGES; MEN WHO ARE NOT INVOLVED
WITH THE CREATIVE PROCESS AT ALL, WHO’S JUDGEMENTS
ARE INVARIABLY SKEWED & PERSONAL.
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