Comments on: Finally, Koons Won

By: ANDREA BLANCH

ANDREA BLANCH — Sun, 17 Dec 2006 22:35:00 +0000

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.

By: Andrew Kenyon

Andrew Kenyon — Wed, 08 Nov 2006 02:45:10 +0000

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.

By: Matt

Matt — Wed, 08 Nov 2006 00:37:09 +0000

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.

By: Christine Farley

Christine Farley — Tue, 07 Nov 2006 18:32:13 +0000

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.

By: Frank

Frank — Tue, 07 Nov 2006 13:52:12 +0000

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.

By: Kaxxell

Kaxxell — Mon, 06 Nov 2006 23:37:05 +0000

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.