Rogers V Koons. No. 234, 388 and 235. United States Court of Appeals, Second Circuit. 2 Apr. 1992.

This is the 2nd Circuit's appellate ruling on Rogers v Koons. The introduction states that the "key" to the suit "brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants' borrowing of plaintiff's expression of a typical American scene — a smiling husband and wife holding a litter of charming puppies." It calls the copying deliberate goes on to give the background facts of the case. It first describes Rogers' work and reputation, followed by an account of how the "Puppies" photograph was created. It then does the same for Koons and the creation of "String of Puppies." It goes back over the "prior proceedings," giving the history of litigation between the two parties and affirms the district court initial ruling.

Moving on to the discussion section, the court eleaborates on the ownership of copyright in an original work of art, which Rogers has, discusses unauthorized copying by defendant, which Koons is held guilty of, and defines the fair use doctrine. It then enumerates the four criteria required to satisfactorily pass as fair use. Under the Purpose and Character of Use criterion, the court says, "Relevant to this issue is Koons' conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use." Essentially, they are saying that he was underhanded about his method of copying. As far as Parody or Satire as Fair Use is concerned, the court says "that even given that "String of Puppies" is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph "Puppies" itself." They argue that Koons was motivated more by profit than satire. The court also holds that Koons copied far more of Puppies than necessary to convey his point. "Koons went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers," says the court. Lastly, the court orders that the effect of the use on the market value of the original has been harmed, and "there is simply nothing in the record to support a view that Koons produced "String of Puppies" for anything other than sale as high-priced art. Hence, the likelihood of future harm to Rogers' photograph is presumed, and plaintiff's market for his work has been prejudiced."

Blanch V Koons. No. 05-6433-Cv. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 26 Oct. 2006.

This is the judgment on the appeal for the Koons v Blanch case with the opinion of Judge Sack. The appeals court rules that Koons’ work was indeed a fair use. Koons was commissioned by the Deutsche Bank and Guggenheim Foundation to create a painting, “Niagra” in which he used Blanch’s “Silk Sandals by Gucci” ad. The court gives background on Koons’ life and work, saying that he is “known for incorporating into his artwork objects and images taken from popular media and consumer advertising, a practice that has been referred to as "neo-Pop art" or (perhaps unfortunately in a legal context) "appropriation art."” It describes both Koons’ painting and Blanch’s photograph and Koons’ use of the photograph in his painting. The two artists’ economic gains and losses are then detailed: Niagra has been appraised at $1 million, while Blanch was paid $750 for her work.

In meeting the criteria for fair use, the court finds Koons’ work transformative, saying it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The court ignores the effect of commercial use because Blanch admits that Koons’ work did nothing to detract from any financial gains Silk Sandals brought her. It does, they say, meet the requirement for parody: “Koons's use of a slick fashion photograph enables him to satirize life as it appears when seen through the prism of slick fashion photography.” Bad faith is cited as the last criteria of fair use. Here the ruling holds that Koons only exhibited bad faith in not first asking Blanch’s permission to use her photo. What I wonder, though, is whether than would have made any difference to her. The other major reason that Koons’ work is said to be acceptable is that he uses only a portion of Blanch’s image, and places that portion with other elements that are not part of her photo, thereby substantially transforming it. In conclusion, the court rules "promoting the Progress of Science and useful Arts," U.S. Const., art. I, § 8, cl. 8, would be better served by allowing Koons's use of "Silk Sandals" than by preventing it.”

For my project, I want to examine three cases in chronological order: Koons v Rogers, Mattel v Forsythe, and Koons v Blanch with the purpose of determining whether Forsythe set a clear precedent affecting the way Koons v Blanch was interpreted. I hope to pinpoint instances of perceptible differences in thinking about appropriation art in the three cases and see if I can trace the different outcomes in the Koons rulings back to Forsythe's victory against Mattel.

"Koons Affirmed (Don't Blanch)." The Patry Copyright Blog. 26 Oct. 2006. 28 Nov. 2006 <http://williampatry.blogspot.com/2006/10/koons-affirmed-dont-blanch.html>.

 
This article is a guide to the Koons v Blanch ruling and takes us through the courts' decisions regarding the four criteria that constitute fair use step by step. Fundementally, he says, the case boils down to two points, that "Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." He summarizes the background of the case (Blanch paid $750 for original ad in Allure magazine, Koons incorperates exact image in his work "Niagra" in order to comment on the way popular images appeal to our most basic instincts and desires.)

Party thinks the majority's distinction between parody and satire is helpful and shows that "Koons had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" He also brings up the issue of bad faith, which has not been mentioned in the two other cases. I think this comes out of Blanch's claims that its pratically a matter of etiquette, she's been quoted as saying something along the lines of "if the artist is still alive, you should at least ask for permission to use their work." I am also interested in the comment posted in reply to this blog in which the author writes, "A major factor in the difference between Rogers and Blanch appears to be that the court found the use of the feet from the Blanch photograph transformative because they were recast in a different position and that the important background elements (man’s lap, aircraft cabin) were not copied. In other words, the Blanch photograph was used more as a reference than as the foundation for the painting."

Greenberg, Lynne A. "THE ART OF APPROPRIATION: PUPPIES, PIRACY, AND POST-MODERNISM." Cardozo Arts & Entertainment Law Journal 11 (1992): 1.

Greenberg calls appropriation art a “wide-reaching trend which has arisen as a response to post-modernist criticism.” She says its reaction to the formalism and aesthetics of a media-saturated society. Most importantly, echoing Koons claims about the school of thought he belongs to, Greenberg says, “Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality.”

In the introduction, she says the article will focus on the challenges postmodernist art poses on copyright law and argues, like the Columbia Law Review editorial that visual art requires a different set of rules than other copyrightable entities. In the section of her piece about the infringement vulnerability of photography, and “its relationship to the originality requirement” she uses Rogers v. Koons to illustrate her point that we need a different way to interpret copyright as it interferes with the objectives of postmodern art. In her analysis of the case, Greenberg maintains that the court’s perspective is skewed because Koons’ work is so expensive. She says that although the court claims that Koons’ work has an economic impact on Rogers, “It seems farfetched to imagine that Koons's "high-priced" kitsch, sold in the elite world of the art gallery, could even tangentially affect the market for either Rogers's commissioned photographs or Rogers's postcards, sold predominantly in gift shops”. Basically, she concludes, the court ruled fairly according to current laws, this case shows that these doctrines are in need of revision in order to make allowances for appropriation art. “The recent decision of Rogers v. Koons simultaneously underscores the precarious position occupied by artists practicing radical appropriation strategies, and accentuates the consequences of so rigorously enforcing the limited monopoly rights granted by copyright law,” she explains.
 

Tyson, Kimball. "The Illegal Art Exhibit: Art or Exploitation? a Look At the Fair Use Doctrine in Relation to Corporate Degenerate Art." Southern Methodist University School of Law Computer Law Review & Technology Review 9 (2005): 425.

This article responds to the "Illegal Art" exhibit that toured the country and features Forsythe's work. The author (who repeatedly spells the artist's name "Forsyth") wants to assess whether or not Food Chain Barbie is fair use--even though the court has already ruled it is. She contends the artists are not sincere in their parodies, and thinks they are actually using art to serve their personal "greedy" objectives. After an abbreviated history of art, Tyson says these works are "an ancillary to Pop Art of the 1960's that take corporate images and use them in their works to convey a parodic message not only of the image itself but of the larger societal scheme of which it reflects." She also summarizes the Copyright Act and defines Fair Use. Instead of actually analyzing what the court said about Forsythe's work, she merely repeats it, and it seems, decides to agree with their ruling. One of the few useful things about this article is her comparison of Forsythe and Koons:

"In the Rogers case, there is no doubt that Koons' use of the original work would compromise Rogers' market of the "Puppies" and "would prejudice the market for the sale of "Puppies" notecards or any other derivative uses he might plan." ²⁴⁷ However, in Forsyth's situation, his photographs seem to have little to no effect on the commercial gain of Mattel based on their copyrighted Barbie Doll. Photographs of Barbie in a blender or in a casserole dish are not really going to have a significant chilling effect on Mattel's market; [this] weighs in his favor."

Tyson allows that the Barbie series is a fair use, but remains suspicious of Forsythe's motives. She writes, "The idea of using art and distorting already existing images to convey a message, to illustrate the absurdity of our times, seems very vulnerable to exploitation. In Mattel Inc. v. Forsyth, the artist had very distinct aims in his creation. Call this a derivative work, call it exploitation. Regardless, perhaps these artists used the well-known corporate images as a way to make money. Just as Volkswagen manipulated the automobile market and somehow made consumers feel as though they were really stepping out of conformity in buying a VW, so these artists, under the pretense of satire and art as corporate parody, had an objective no different than that of the corporations and consumer crazed society which they mocked: personal gain motivated by greed, selfishness, and envy." To me, her argument falls flat given that Forsythe did not profit hugely from the works. Art is his profession, his means of making a living, and to charge $400 for a work that he spent time creating does not seem greedy or unreasonable. She contradicts herself, but this piece is valuable to my research because it takes a position I haven't yet encountered and deals with the concept of artists' "worthiness" so to speak and the merit of their intentions.

 

 

Zando-Dennis, Julie. "NOT PLAYING AROUND: THE CHILLING POWER OF THE FEDERAL TRADEMARK DILUTION ACT OF 1995." Cardozo Women's Law Journal 11 (2005): 599.

This article is about the Dilution Act of 1995, which is relevant to the Forsythe case because Mattel claimed that his use of their trademark could both blur and tarnish it, meaning, confuse consumers or damage the product’s image/reputation. Zando-Dennis explains that works of satire and parody are most likely to be accused of causing dilution. Mattel has a history of filing suit as soon as they get wind of any unauthorized use of the Barbie name or image, says Zando-Dennis, who points to the website www.trademarks.org (devoted to criticizing Mattel) as evidence of the loathing their lawsuits have engendered amoung advocates of free speech. She delves further into the definitions of blurring and tarnishing, giving useful and clear examples how they can be both beneficial and harmful.

The second section of her article is dedicated to “Subversive Activities that Parody Mattel’s Barbie Doll,” including Mark Napier, an internet artist who produced digitally altered images of Barbie and the band Aqua, famous for their song "Barbie Girl" that all resulted in litigation. "Another artist, Paul Hansen, sold 150 modified Barbies as art works, on which he made a profit of around $ 2,000. Mattel sued for damages of $ 1.2 billion," she writes illustrating how rediculous Mattel makes itself appear. Forsythe's case is discussed in the section "Current Trends, Successes and Remaining Challenges." Zando-Dennis quotes Forsythe's lawyer as saying "This case is about insisting that a corporate giant can't stop an artist from using one of their products to create art and to comment on our society. If we were to allow that to happen, the content of our culture would be greatly reduced and emptied. We cannot allow Mattel to do that." Clearly, Zando-Dennis vigorusly agrees  with  the ruling in Forsythe's favor. She admires the way the case has "significantly liberalized trademark law"  and hopes other circuits (the 8th in particular) will follow the 9th's lead.

Today, piracy refers more commonly to the prohibited copying and distributing of software rather than to the hijacking of ships on the seas. With the advent of the Internet and the globalization of world economies, businesses and individuals alike have turned online to expand their customer base. Simultaneously, software pirates have seized this opportunity to produce and sell illegal copies of copyrighted material, especially in video and computer games. Still, the complications of copyright infringement are augmented by the diversity of governing laws in countries around the world. In part due to international game play and the mainstream use of the Internet, future game products will focus on Massive Multiplayer Online Role Playing Games (MMORPGs). In these games, players assume characters in virtual worlds. Such online communities are already developing their own rules and economies, as witnessed by the trading of virtual goods with real currencies. As a result, game companies have encountered new legal territories of copyright infringement and anti-circumvention regulation. It will become imperative to examine how legal rights and laws in the real world will affect these virtual worlds in the future. The development of game copyright laws will be fueled by efforts to combat game piracy, to drive innovation and technology, and to compete with globalization of world economies.

Mattel Inc V Walking Mountain Productions. No. 01-56695, 01-57193. US Court of Appeals for the Ninth Circuit. 6 Mar. 2003.

Filed December 29, 2003. Opinion by Judge Pregerson. This appellate ruling confirms the district court’s grant of summary judgment to Tom Forsythe and dismisses Mattel’s claims that he infringed on their copyrights. Because this article contains a “background” section that details the previous trial extensively, I am going to use this case instead of the first one. It is more comprehensive and recent. The document begins by describing the nature of Forsythe’s work: “a series of 78 photos entitled ‘Food Chain Barbie’ in which he depicted Barbie in various absurd and often sexualized positions…For example, ‘Fondue a la Barbie’ depicts Barbie heads in a fondue pot.’” It talks about the series’ limited market success which amounted to an income of $3,659, half of which came from purchases made by Mattel investigators. The court notes his self-given title of “Artsurdist” and concedes that his work attempts to communicate a “serious message with an element of humor” that intends to critique and ridicule Barbie. It then goes over the various motions and actions that lead up to this particular appeal before reaching the “discussion” section.

This is really the heart of the case, where Pregerson explains why “Food Chain Barbie” is considered fair use. He confirms the three reasons cited by the district court which are that 1) his use was a parody criticizing Barbie 2) he only copied what was necessary for this purpose 3) his photos couldn’t affect the market demand for Mattel’s products. He argues that Forsythe’s work is transformative because it “presents the viewer with a different set of associations and a different context” than Mattel does. Forsythe did not display the entire Barbie in his pictures, and only showed what he needed to in order to convey his message. “We do not require that parodic works to take the absolute minimum amount of the copyrighted work possible,” Pregerson says. And although the works were intended to be sold commercially, the fact that they were unsuccessful shows that he’s not taking any business from Mattel because they appeal to different markets; Mattel to children’s toys, and Forsythe to adult-oriented artistic photographs. 

Forsythe, Tom. "Food Chain Barbie & the Fight for Free Speech." National Coalition Against Censorship. 10 Aug. 2004. 27 Nov. 2006 <www.ncac.org/art/20040810~USA~Tom_Forsythe_Food_Chain_Barbie.cfm>.

Forsythe posted this statement on August 10, 2004 as a follow-up to the District Court’s June 24th ruling ordering Mattel to pay his legal fees, which amounted to $2.1 million over the course of five years of litigation, from 1999-2004. In this piece, he maintains that Mattel’s only tactical strategy was to overwhelm him with the cost of his defense and essentially bankrupt him into submission. He calls his case precedent-setting and says it should will discourage corporations from filing suit against artists who criticize their product and will encourage lawyers to work for other artists that get sued because they are more likely to be compensated, like Forsythe’s counsel was.

The rest of the statement details the Mattel v Walking Mountain productions saga from start to finish. He was served with a copyright and trademark complaint from Mattel, decided to fight back, searched unsuccessfully for representation, finally got some help from the ACLU of Southern California who petitioned a San Francisco firm (Howard, Rice, Nemerovsky, Canady, Falk & Rabin) to take the case pro bono. He defends his work as an “obvious” example of fair use—“political and social criticism presented with humor and parody.” Forsythe calls the trial “an essential fight” and says that free speech is paramount to our free society. He argues that it is not the government that censors us, but corporations. “They make their brand ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism,” he writes.

Because we are so sensitive to the threat of official censorship, we don’t notice when it is privately exercised by powerful companies with unlimited funds at their disposal. Forsythe calls the legal system a “boxing ring for the rich.” “I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives,” he explains. The artist’s responsibility is thus to comment on the brands that dominate our lives in order to communicate with the world.

This is suit that Lexmark International, Inc filed against Static Control Components (SCC), Inc. It is the appeal case, where the court overturns the findings against SCC. Lexmark claims that SCC violates the DMCA by selling printer toner cartridges that work with Lexmark’s printer engine program. Lexmark claims that SCC’s chip violates the DMCA and federal copyright law. Part I A of the case provides a description of the companies and the computer programs and how they work. It also explains Lexmark’s toner cartridges and the chips manufactured by SCC. Part I B is a summary of the proceedings and findings of the district court. Section II says that the district court abused its power and outlines four criteria that have to be fulfilled in order to uphold the preliminary injunction. Part III is the beginning of the decision. The first part of the decision outlines the laws that relevant to the case and what each side has to prove in order to win. The court uses the idea-expression dichotomy and other copyright principles to find that one part of the software, the Toner Loading Program, is not copyrightable. The court also states three errors that the district court made in its ruling on the issue of copyright infringement by SCC. The district court was mistaken about what is protectable and what is not when it comes software copyright. Part C of the decision assesses Lexmark’s counter arguments that support the ruling of the district court. Part D comments on the district court’s response to SCC’s fair use arguments, even thought they were irrelevant because the Toner Loading Program is not copyrightable. The court says the district court was right in the four factors SCC had to have for a successful argument and comments on these. Section IV of the decision looks at the DMCA element of the case. Part IV A looks at the laws and what claims the parties make under these laws. Part B says that reading the printer’s memory, not only by the code, can access the Printer Engine Program because it is not encrypted. Since no security device has to be circumvented to get to the code, SCC is not in violation of the DMCA. The rest of this section looks at Lexmark’s case and responds to it. Part C states that the SCC chip does not provide access to the Printer Engine Program, it instead replaces it. Part D addresses the district court’s assessment of SCC’s case because it could become relevant. The court vacates the preliminary injunction and orders further proceedings.
This case is relevant to my paper because it shows how companies attempt to use the DMCA to prevent aftermarket competition. Even though Lexmark fails, the courts ruling has nothing to do with the DMCA and its wording, rather it is about technicalities in a sense. Lexmark lost its case because one of its programs cannot be copyrighted and the other was not encrypted, not because of interpretation of the DMCA. Even though there are court cases regarding the law and its uses, they are not effective in setting precedents or helping with DMCA interpretation.

This article looks at how the DMCA provides a super-monopoly that is a viable method of doing business and bypasses the inconveniences of copyright and patents by protecting things that were once allowed. The article analyzes current court cases and shows how they have yet to rule out the so-called super-monopoly that the DMCA allows. The first section of the article explains the DMCA and what it does. It also explains how companies use the first part of section 1201 (1201 (a)) as a means of monopolizing their market. The first case that the paper examines is Lexmark v. Static Control. Lexmark makes their money through the after market sales of their toner cartridges and replacement parts. However, there are many companies that sell toner cartridges that are Lexmark compatible. Lexmark created a Printer Engine Program to combat this and make their cartridges the only ones that work with their printers. This copyrighted software works with a chip in the toner cartridge and prevents the printer from working with any other cartridge or with an empty cartridge. Static Control is a company that sold chips to companies that refurbished Lexmark Cartridges. These chips allowed the cartridges to be accepted by Lexmark’s software control program. The courts first ruled that Static Control violated the DMCA. The appeal overturned this decision because of failures with Lexmark’s software and the fact that they were not encrypted or necessarily copyrightable. The programs that Lexmark used only protected one type of access, and left other methods open. The second legal example is The Chamberlain Group vs. Skylink. Chamberlain wanted to control the garage door remote control market and sued Skylink over a remote control that opened doors with a digital security feature. The court ruled in favor of Skylink because the unauthorized copying that Chamberlain sued under did not involve copyright infringement, so it was not covered by the DMCA. The next section of the paper outlines how you can effectively create a super-monopoly. The first strategy is to copyright the software for the product and its replacement pieces. A part of this software has to contain a secret code that unlocks the main software. The second tip is to write long and inefficient programs. These programs are more likely to be copyrightable because they have original expression. They are also harder to reverse engineer and cannot be used because they are the most efficient. The third suggestion is to include non-functional code in the program so there is evidence if another company directly copies your program. The fourth way is to encrypt copyright programs. This prevents people from accessing the program itself. Fifth is not making the “key” dependent on the entire program in the parts. Code inputs should be stored elsewhere on the chip. The sixth and seventh methods are avoid licensing that allows continued use of copyright programs and sell the main unit and main program separately. The article concludes that the DMCA allows companies to monopolize their aftermarket.
This article is a good example of how the DMCA can be manipulated in a very effective manner. The DMCA is a tool that creates a new business model of monopolization, and this article is evidence of that. The court cases show how the courts have not ruled on the DMCA itself, they have only applied it to situations. The paper outlines how to avoid loopholes and make your business plan sound under the DMCA in order to create a monopoly. The DMCA has clearly created a new way of doing and controlling business that is contrary to the original intentions of copyright law.

This is Title 17. Copyrights, Chapter 12. Copyright Protection and Management systems. Section 1201 outlines the circumvention of copyright protection systems. It focuses on what violates the circumvention part of the act. This part of the DMCA states that you cannot circumvent a technological measure that exists to control access to copyrighted work that is protected by the DMCA. This part of the DMCA also makes products that circumvent copyright protection illegal. It states that you cannot make, trade or sell programs that are primarily designed to circumvent copyright protection, such as programs that break encoding and that do not have any commercially significant use outside of circumventing copyright protection technology. The section then goes on to define what the word circumvention means in this context. One cannot create something that disarms any protection on the copyrighted work without permission of the authors. Examples such as decrypting and descrambling are given. The section also states that this does not violate and rights that come with copyright including fair use and free speech. The chapter also provides exemptions for nonprofit libraries, archives and educational institutions to the first provision of the chapter with limitations. The chapter then goes on to look at reverse engineering and encryption research. These articles outline the legalities of circumventing copyright protection to analyze its flaws among other things. There are allowances for good faith testing and research in some areas, although they are limited. The end of the document gives a history, notes and definitions of subjects that are part of the act. It also cites relevant cases that have challenged the DMCA, its stipulations and its legalities.
This is the section of the DMCA that many hardware manufacturers are using to create software that is copyright protected and is the only software that the hardware can be used with. This is the law that allows small monopolies on the market to exist until something new is invented or the monopoly is challenged by law. This section of the DMCA allows for copyright protected material to be impermeable to circumvention. This is an important part of the DMCA and is one that draws a lot of attention both in and out of the legal system. It has, in some ways, created a new business model and a new way for companies to enter another market by exploiting the copyright protection and anti-circumvention clauses. It allows companies like The Chamberlain Group to try and block the market and control it by claiming copyright infringement. It also allows hardware companies to enter the software market because they create hardware that can only be used on their copyright protected software platforms. Although a lot of this has not held up in court, when challenged, it has become a popular way of doing business and entering into a new market. This part of the DMCA is the backbone of my paper. I will analyze its words to show how it allows for companies to attempt to monopolize markets and control aftermarkets. I will also suggess that it needs to be ammended because although the courts have limited the attempts of some companies to control their market and aftermarkets, the DMCA is still open to exploitation because the court rulings do not create any legal precedents that go against the DMCA itself.