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.”

"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.
 

"BEYOND ROGERS V. KOONS: a FAIR USE STANDARD FOR APPROPRIATION." Editorial. The Columbia Law Review Oct. 1993: 1473.

This article gives some background to the case, describing how Koons found a postcard bearing Art Rogers' "Puppies" photograph, sent to it a foundry in Italy and instructed them to make four sculptures that looked exactly like it (with some slight variation in coloring), showed the work in an exhibited entitled "Banality Show" and sold three of the sculptures for a total of $367,000, whereafter Art Rogers sued him for copyright infringement. The court's position was: "The copying was so deliberate as to suggest that Koons and Sonnabend Gallery resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism."

Koons is accused of plagerizing just because he can. He defended the works as parodic in nature, but despite his stated intent to comment on the banality of much commericial art, the both the district and appelate courts ruled in favor of Rogers. This article quotes Koons as saying that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. It also argues that art that stems from found images is a "valid form of criticism and comment" and that failing to protect artists from infringement stifles expression. It calls for a revised fair use policy tailored to the specific conditions of visual art.

As noted in the introduction, the first part discusses the development appropriation art form within a philosophical and conceptual framework and describes how subject matter is affected by the threat of legal consequences. The article then covers the current definition of parody and fair use, identifies their weaknesses in the “context of appropriation,” and reviews and analyzes academic attempts to develop standards protecting artists’ creativity and their plausibility. It then goes on to suggest a better solution to the problem of parody and fair use that tries to accommodate both the originating and borrowing artists based on preserving the copyright owner’s “economic incentives for further creation” without prohibiting all possible infringements, which reflects of the “unlikelihood that the copyright holder would suffer substantial economic harm to the value of or the market for her work because of the appropriator's activity.” It reflects the idea that any minor harm is “outweighed by the strong public interest in fostering the creation of artworks that speak critically about social norms and constructs.” Ultimately, this article claims, “Appropriation is an art form and a method of creation conceived and defined as a critical force - as such, it is deserving of liberal protection from copyright infringement suits.” 

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.

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.

Cardamone, Richard J. Art Rogers v. Jeff Koons; Sonnabend Gallery, Inc. National Coalition Against Censorship. 28 November 2006. .

This case is an appeal of the earlier Rogers v. Koons decision. Art Rogers took a photo titled "Puppies", depicting a man and woman holding armfuls of puppies; the photograph became very popular on greeting cards. Later, Jeff Koons took a postcard with the photo on it, removed the copyright notice, and planned the creation of a sculpture titled "String of Puppies." He specified that the sculpture be as similar to the original photo as possible, due to its use in an exhibition titled "The Banality Show" featuring art based on pop culture and commonplace images. Although the photo was in black and white, the sculpture was in full color. Three "String of Puppies" sculptures were sold for $367,000 each. Rogers sued Koons for infringing on his copyright; Koons claimed his work was a parody of the original, and therefore a fair use. The court found that the two works were substantially similar, that Koons had access to the "Puppies" photograph (and, in fact, actively worked to create a piece very similar to the original). The court did not find an specific necessity for the use of the "Puppies" photo that was being commented upon explicitly by Koons' sculpture, and therefore did not uphold his claim of a parody.

This case is very significant for being one of the first instances in which appropriation art came to trial for a copyright violation. Significantly - and keeping with the trend in many later cases - art using appropriated content lost.  Although this particular case had many of the hallmarks of a decision against fair use - willful, known copying, economic profit from the work, etc. - it still shows a tendency of the court to dismiss this kind of art as copyright infringement.  As I will be working with appropriated content on my final project, it is useful to know how court cases involving other appropriated-content works have turned out.

Slater, Derek. "Take Another Little Piece of My Art." Illegal Art | Creative Commons. July 2003. Creative Commons. 28 November 2006. <http://creativecommons.org/image/illegalart>.

This article describes "Illegal Art", a traveling exhibition which was displayed at the SF MOMA Artist's Gallery in July 2003. The show contained pieces in a variety of media, with a full-length CD and several films and videos in addition to various two- and three-dimensional artworks. Carrie McLaren, curator of the exhibition, began working on an appropriation art exhibit in response to unsuccessful challenges to copyright term extensions; the goal of the exhibit was "to make copyright's problems as real to the average person as they are to [the] featured artists".

The article attempts to place the "Illegal Art" exhibition in the context of the larger legal debate surrounding appropriation art by comparing the pieces in the show to famous copyright cases, such as the 2 Live Crew case. The author also pays close attention to the economic constraints place on appopriation artists by licensing fees, cease-and-desist letters, and other tools of copyright permission holders. Overall, the article sides firmly with the validity of the art and the necessity for its legalization - no surprise, considering that the article is written for the Creative Commons. Succintly summarizing his point, Slater writes, "Had these legal limitations [on appropriation art] existed years ago, perhaps collage, rap, and Pop Art would have been sued to death before they ever had a chance to flourish. These days, the implication is that these appropriations are lower artforms, deserving legal treatment suited to petty thievery."

This article will definitely be very helpful for my project; it provides a general background on the use of appropriation art to comment driectly on copyright issues.

Greenberg, Lynne A. “The Art of Appropriation: Puppies, Piracy and Post-Modernism.”  Cardozo Arts and Entertainment Law Journal.  11 (1992):  1-33. 

Greenberg’s article discusses visual art making practices connected with post-modernism and how these conflict with copyright. The article looks at neo-conceptual traditions, such as appropriation art, a serious art movement in which the artist “works by lifting images from artistic images of the past and creating replicas of these images …By confiscating the ideas, images, and even styles of the masters, the Neo-Conceptual artists radically defy the modernist ethic of individual authorship, the authenticity of expression, and artistic uniqueness as a primary goal of the avant-garde.” (p. 14). 

Greenberg offers detailed analyses of the work of Levine and Koons.  With respect to Rogers v. Koons, Greenberg notes that the fair use doctrine was not accepted by the court and that the court was hostile to the art making strategies of appropriation artists.  The court failed to see the way in which his use of Rogers’ photograph was necessary for Koons to comment upon contemporary society. The appellate court looked instead to the fair use exception for parody and found Koons’ argument lacking on this point.  For Greenberg, the Koons decision may bring a halt to appropriation art unless the court takes a fresh look at the “comment and criticism” aspect of fair use.

Fukumoto, Elton. “The Author Effect after the “Death of the Author: Copyright in a Post-Modern Age.”   Washington Law Review 72 (July 1997):  903-934.

Fukumoto looks at the intellectual background to artistic practices like appropriation art that challenge notions key to the application of the principles of copyright law. These practices challenge the romantic notion of the author as an inspired individual of genius who creates something unique. 

He reviews the ways in which contemporary writers in philosophy and cultural studies, like Barthes, Foucault, Derrida, are challenging the romantic notion of the author.  In addition, the article looks at the antecedents of these ideas in the work of nineteenth century writers like Ralph Waldo Emerson and Justice Joseph Story.

Fukomoto then discusses the artistic practices of modernism and post-modernism as they relate to appropriation in a number of creative fields, including music, literature and the visual arts. The two main cases discussed in this article are Rogers v. Koons and Campbell v. Acuff-Rose Music.  In focusing on the Rogers v. Koons cases,  Fukomoto finds that the reasoning of the court means that appropriation art will be halted as an artistic movement, unless the text or the interpretation of the fair use provision of the copyright statute changes.  The opinion in Acuff-Rose moves in a helpful direction in offering a way out for post-modern appropriation artists under fair use.

Koons is a member of an artistic community that offers a strong social and political criticism of a contemporary culture that is centered upon the production and exchange of commodities and a society that is saturated with uncritical, seductive media imagery.  For artists such as Koons, it is essential to be able to incorporate images from contemporary society to engage in key social critical artistic practices.

Rogers v. Koons,  715 F. Supp.  474 – 481 (S.D.N.Y. 1988)

This case is the first major case of appropriation art that went to trial.  The facts of the case find Koons, a major appropriation artist, preparing for a show in 1987 which he called the Banality Show.  In Koons’ words “the subject for the show would be Banality but the message would be a spiritual one. And while being uplifting, the work would be critical commentary on conspicuous consumption, greed and self-indulgence.” (p. 476). the show was made up entirely of sculptures.   In collecting material for the pieces, Koons purchased two note cards which contained photographs created by the plaintiff, Art Rogers, showing a male and female couple holding an armful of puppies.  Koons tore off the copyright notice and sent the card to artisans in Italy with instructions to fabricate a wood sculpture following the image on the black and white photograph. Koons also sent instructions for modifications including the use of color, putting flowers in the couple’s hair, and changing the noses of the puppies.  Koons never contacted Rogers about the use of the photograph called “Puppies.”

The case was determined on a motion for summary judgment. The plaintiff moved to have the case decided in his favor since there was no issue of triable fact remaining after discovery.

Koons raised two defenses to the charges of infringement: that he used non-copyrightable ideas found in Rogers’ photograph and not Rogers’ expression.  The court did not except that defense.  The court found that the sculpture was a derivative work and that Rogers’ had an interest in that use of his photograph.  Koons also asserted fair use in that he used Rogers’ photograph for criticism of 1980’s American consumer society.  The judge did not find this use to be “criticism or comment” which was protected as fair use under section 107 of the Copyright Statute.  This is the most significant portion of the decision with respect to appropriation art.  As a serious late twentieth century art movement, appropriation art selects items of popular culture and reproduces them in a serious art making process that is recognized by the art world but not by the judge in this case.

The introduction to the handbook is by the art critic Robert Rosenblum. It gives biographical information about Koons, including his art school training in Chicago and Baltimore, his move to New York City in the late 1970’s, his employment first at the Museum of Modern Art and later as a Wall Street commodities broker, and his ultimate success in the New York art world of the 1980’s.  The introduction also discusses the development of 1980’s art and Koons place in that world. 

Koons provides a prose overview of his philosophy of art and life in the bulk of the monograph.  The handbook reviews the major shows of Koons which took place during the 1980’s, with illustrations of the art works and some commentary by Koons on the shows.

In looking at the way in which the federal courts addressed  borrowing by Koons from photographic sources,  it is important to have an understanding of where Koons fits in the contemporary art world of social criticism, ironic imagery, and post-conceptual art.  While a painting or sculpture is a single art work which is often the object of inquiry in a copyright case, the context of the artist’s entire oeuvre, his place in the contemporary art world, and his statements of want he or she intends to accomplish by engaging in a particular artistic practice, are important legally in assessing the fair use and transformative results of these practices.

This is the most recent copyright case involving Jeff Koons.  In this case Koons appropriated a portion of a photograph from an advertisement which was published in Allure, a popular magazine. Koons took the image, captioned  Silk Sandals by Gucci created by photographer Andrea Blanch.  Koons incorporated the image in a painted collage termed Niagra that included several of images of feet along with several other images.  Koons defended against the infringement suit by alleging fair use. The court agreed with Koons. Blanch has appealed to the Second Circuit Court of Appeals but that appeal has not yet been heard.

Koons used only a portion of the photograph, which also included an airline cabin and a magazine.  Using the four part fair use test, the judge, on Koons motion for summary judgment, found that the transformative rule articulated in Campbell v. Accuf-Rose to be extremely relevant.  The judge determined that Koons use was very different from that of Blanch.  He focused on the transformative use to which Koons put the borrowed portion of the Blanch photograph.  He found that “[t]he painting’s use does not supersede or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, and new insights.  Such use, whether successful or not artistically, is transformative.”(p.8).

In this case, Koons use of an image is not as radical as his earlier work, such as String of Puppies, or the uses made by extreme appropriation artists such as Sherrie Levine. Koons’ use of a portion to Blanch’s photograph was much closer to the traditional use found in a collage. However, the court in this case clearly applied the Accuf-Rose transformative use standard as a justification for allowing Koons to defend against an infringement case by a claim of fair use.

Hamilton, Marci A. “Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works.” Journal of the Copyright Society of the USA  42 (Winter 1994): 93-126.

Farley, Christine. “Judging Art.” Tulane Law Review 79  (March 2005):  805-858.

In this article Farley discusses the many instances when judges confront issues where they need to make determinations concerning art.  She writes that “whether law seeks to protect or encourage the arts, it, like many other institutions, assumes that the arts are intrinsically valuable.  Because of this value, the law seeks to separate out art for special privileges.  It is for this reason that art needs definition.” (p. 810). Usually these are implicit judgments,  not informed by contemporary developments in aesthetics and art history.  When dealing with copyright law as applied to the work of appropriation artists like Jeff Koons and Sherrie Levine, the actions of the artists will not be understood unless the underlying aesthetic theory which motivates the actions are understood.  Farley urges judges to use experts and/or to make themselves aware of relevant aesthetic theories as these apply to cases which come before them.