CASE/RULING:
Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y.) aff’d 960 F.2d 301 (2d Cit. 1992)
-Leading U.S. court on copyright, dealing with the fair use defense for parody
-Ruling: The United States Court of Appeals for the Second Circuit found that an artist copying a photo could be liable for infringement when there was no clear need to imitate the photo for parody.
BACKGROUND:
-Art Rogers, professional photographer, took a black and white photograph of a Mr. and Mrs. Scanlon who hired him to photograph them with their new German Shepherd puppies. Over 10,000 reproductions of the image were made. The photograph was entitled “puppies” and was used on greeting cards and other generic merchandise.
-Jeff Koons, famous artist, found the picture on a postcard and decided to make a wood-painted sculpture based on the picture for an art show (“Banality Show”) at Sonnabend Gallery on the theme of banality of everyday items.
-Koons had been in the habit of creating sculptures and other works of arts from photographs by others. He believed this to be much like the file of images he worked from, stating that it was typical and commonplace—as an image part of the mass culture, “resting in the collective sub-consciousness of people regardless of whether the card had actually ever been seen by such people.”
-Koons ripped off the portion of the postcard which contained the photographs copyright information and gave the picture to his assistants with specific directions on how to model the sculpture. He instructed his assistants to copy as much detail as possible while making the puppies blue with exaggerated noses. He also asked that hey add flowers to the hair of the man and woman.
-The sculpture entitled “String of Puppies” became a huge success at the Sonnabend Gallery where it was displayed on November 19, 1988.
-Koons sold three of the four copies made for a total of $367,000, and kept the last for himself.
-When Rogers discovered that his photograph had been copied he sued both Koons and the Sonnabend Gallery for copyright infringement.
-Koons admitted to having copied the image intentionally but claimed fair use for parody.
-Image of “Puppies” by Art Rogers (1980): http://www.law.harvard.edu/faculty/martin/art_law/rogers_puppies.gif
-Image of “String of Puppies” by Jeff Koons (1988): http://www.law.harvard.edu/faculty/martin/art_law/koons_puppies.jpg
COURT RULING:
-The court found “substantial similarity” between the two works and knew that Koons had had access to the photograph, thus ruling that the sculpture was a copy of Rogers’ work.
-“Fair Use” did not suffice as an argument for Koons, as the court stated that this parody could have been constructed without copying Rogers’ specific work.
-The Appellate Court held that a reproduction of a photograph in a sculpture form constituted a definite copyright infringement.
-As applied to the law, the Court found that the facts in this case supported an unauthorized copying by Koons
MORE INFORMATION:
-Koons maintains that he creates his work in an art tradition dating back to the beginning of the Twentieth Century, which defines its efforts as follows: when an artist has finished his work, the meaning of the original object has been extracted and an entirely new meaning is set in place.
-In October 2006, Koons was commissioned to create a seven painting for the Deutsche Guggenheim Berlin. He drew a part of his work from a photograph by Andrea Blanch titled “Silk Sandals” by Gucci. This photograph had been published in Allure magazine in August of 2000.
-Koons took this image of the legs and diamond sandals from the photo, omitting any background details, and used it in his painting “Niagara,” which includes three other pairs of women’s legs over a landscape of painted cakes.
-In court, Koons’ argued that “Niagara” was “an entirely new artistic work…that comments on and celebrates society’s appetites and indulgences, as reflected in and encouraged by a ubiquitous barrage of advertising and promotional images of food, entertainment, fashion and beauty.”
**Koons notes that it is important for him to use these photographs, to copy—to appropriate or whatnot—rather than painting the legs himself because: “my paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience....therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness.”
-The decision was made in the U.S. District Court found that “Niagara” was a “transformative use” of the photograph and ruled in favor of Koons.
-Blanch comments that she would not have minded this use and would have not taken it to court had Koons simply asked for permission. Blanch has appealed.
-Andra Blanch’s “Silk Sandals:” http://iplitigator.huschblackwell.com/Andrea%20Blanch%20Silk%20Sandals%20by%20Gucci.jpg
-Jeff Koons’ “Niagara:” http://ismisms.com/Jeff_Koons/Niagara-koons.jpg
OTHER ARTISTS OR CASES I WILL REFFER TO:
-Genre of Appropriation Art
-EX: Andy Warhol (“Campbell’s Soup” (1968), “White Burning Car” (1963)à appropriated images) who faced a series of law suits from photographers for work he silk screened
· “Art is what you can get away with.”
· “Good artists copy. Great artists steal.” –Pablo Picasso
-contemporary artists that draw upon our image landscape to create a consciousness about our reality within the minds of their audience.
-Up until what point can an artist claim “fair use?”
-Is it the same thing that is happening with music, with mash-ups, with artists such as Girl Talk, with fashion?
-What does this mass use of appropriation tell us about our culture, about where its going, and how do IP laws have to mold in order to fit that?
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