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.

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.

 

Hamilton takes a more author’s (moral) rights approach when looking at the legal discourse over appropriation art and copyright.  In this “war against the author,” we find copyright law “in crisis and it is the author embracing her bundle of rights who stands at the vortex of the controversy.  The often unstated, but readily apparent, question motivating much of the discourse on copyright today is which stick in the author’s bundle of rights should be sacrificed for the sake of a higher goal.” (p. 93).

For Hamilton, the focus of the discussion is a strong notion of property. And the author (or artist) owns an entire bundle of property rights in her copyrighted work.  Hamilton rejects the call of many commentators for a fair use exception for appropriation art. She does not see a reason to distinguish the copying that is involved with the creation of appropriation art and copying in general and she feels that artists should pay for use of copyrighted material and that the rights of the holders of copyright should be respected.

A believer in moral rights, she looks with distain at the direction of copyright in America. “We are already moving toward a permission-less, renumeration only system.  As we do we move farther and farther away from the notion of author as rights-holding genius and closer and closer to the notion of the work as a commodity of exchange.” (p.126).

This article offers a critical perspective from a moral rights position.  It faults not only attempts to aid appropriation artists by expanding fair use to encompass their art making practices but also models which would use compulsory licensing that would deprive the artist of determining how her work is to be used.

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.

Farley looks at the many interactions between law and art.   She reviews first  the arguments why courts fail with respect to the arts.  “The law appears  apathetic about the rationale for protecting art, as well as the definition of it, even as it is obliged and/or inclined to differentiate art.” (p. 810).  Starting with Justice Holmes’  statement in Bleistein that courts should exercise restraint in making aesthetic decisions, Farley discusses a number of cases where judges have avoided making aesthetic judgments. She then reviews a number of statutes which deal with art, such as the Visual Artists Rights Act, and looks at how they define art. She  finds courts avoiding the definition of art, and uses the Rogers v. Koons case as an example of this approach.  In Koons “the pertinent question was whether appropriation art makes fair use of copyrighted work, [but]  the court instead addressed itself to the legal requirements of parody.” (p. 836). 

Farley believes that instead of using a parody analysis, the Koons court should have looked at the practice of appropriation art in selecting images from mass media and popular culture and recontextualizing them.  By restricting its analysis to the question of whether Koons use of Rogers photograph was a case of parody, the court did not look at the cultural value of Koons’ art. It also rejected the possibility for a fair use defense in cases of satire and broad social criticism. Farely finds that the use of art industry and art historic experts could aid courts in making more appropriate and nuanced analyses of the art practices of post-modern artists and the extent of protection that should be extended to the products of these artists under the fair use defense to infringement.

Art Rogers v. Jeff Koons, 960 F.2d 301-314 (2^nd Cir. 1992)

This is the appeal of the earlier Rogers v. Koons decision.  The Second Circuit, among other things, upheld the finding of the trial court that Koons infringed on Rogers rights in his photograph and that Koons’ defense of fair use was not available.  The court’s fair use analysis is the heart of the appeal with respect to the issues relating to appropriation art.

The appeals court judge determined that Koons had not parodied Rogers photograph and that this is an important factor or else “there would be no real limitation on the copier’s use of another’s copyrighted work to make a statement on some aspect of society at large.” (p. 309).   Social parody must also be parody of a particular appropriated image in order for the artist to claim a defense of fair use under the parody exception.

The court also looked to Koons own behavior, for example tearing off the copyright notice on the note card.  It should be noted that Koons sold three copies of String of Puppies for over $350,000.00. The court ignored any social or cultural criticism brought about by Koons’ production of the sculpture, finding that “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.” (p. 312).

Appropriation art is an important post-modern movement that was most active during the 1980's and 1990's. It has philosophical antecedents in the work of cultural theorists like Roland Barthes, Michel Foucault and Jacques Derrida. It is a movement that is critical of modern consumer society and the media and advertising-saturated environment which is a major component of that society. It calls into question originality, the romantic notion of the author, and related social institutions like the gallery and the museum. The artistic practices of appropriation artists, which involve copying images of earlier art works or popular media or advertising, come into conflict with copyright law. This annotated bibliography contains a number of law review articles and cases that deal with the conflict between appropriation art and copyright. Jeff Koons, a major appropriation artist of the 1980's, is the major focus of this material. The bibliography also contains a monograph of Koons' work during the 1980's that articulates his philosophy of art making and provides a context for his work. Most of the commentators conclude that there are a number of solutions to this conflict that would allow this significant, socially critical art movement to continue. These include compulsory or copyright-holder controlled licensing, a specific statutory change to encompass the practices of appropriation, the use of art historical experts in court challenges to allow for more nuanced judgments, and, most significantly, an expansive reading of section 107 of the copyright statute's fair use defense which would encompass artistic innovations like appropriation art.

Ames, E. Kenly.  “Beyond Rogers v. Koons: A Fair Use Standard for Appropriation.” 93 Columbia Law Review  93 (October 1993): 1473-1526.

Ames provides a detailed analysis of the court proceedings in Rogers v. Koons.  In the first section of the article, Ames surveys, from an art historical and philosophical perspective,  the development and philosophical underpinnings of appropriation art as practiced by artists such as Jeff Koons and Sherrie Levine. The article details various types of image appropriation in art, such as that practiced by Braque and Picasso, numerous collagists, dada artists, and many contemporary artists such as Warhol, Rauschenberg, Oldenburg and Rivers.  The article also looks at the intellectual background to appropriation art found in the writings of authors such as John Berger and Walter  Benjamin.

Looking at the impact  the rejection of a fair use defense in Koons on the artistic community, Ames indicates that the decision has “had some chilling effect on artists’ choice of subject matters…[I]f one recognizes the value of the critical function performed by even the most extreme appropriationist art, the need for a standard to prevent the quite predictable chilling of the Koons decision on artists’ free choice of subject material is clear.” (p. 1485)    Ames criticizes the Koons court for failing to acknowledge the value of the social critique that results from appropriation art strategies.

Ames concludes by proposing a fair use standard to be applied to appropriation art.  The proposed fair use standard would focus “on the type of secondary work created and its effect on the market for the original work….That standard would favor free appropriation for use in works of visual art….[however, the]..protected secondary work could not be a market substitute for the original work, neither in its original form nor in all derivative forms either work might reasonably be expected to take.” (p. 1516). For appropriation artists to continue to work unfettered, a fair use exception is a necessity.

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.

Quentel, Debra L.”’Bad Artists Copy, Good Artists Steal’: the Ugly Conflict between Copyright Law and Appropriationism.” 4 UCLA Entertainment Law Review  4  (Fall 1996): 39-80.

This article lays out the ways in which the visual arts use strategies of appropriation and how these strategies often conflict with the provisions of copyright law. Quentel discusses the most prominent case in this area, Rogers v. Koons. She also offers the idea of a statutory "fix" by means of compulsory licensing.
Since Koons is the only appropriation artist to have had an infringement case go to trial and appeal, Quentel’s article then focuses on Rogers v. Koons.  She provides a detailed analysis of Koons’ fair use argument going through the four part fair use test provided by section 107 of the Copyright statute.   After discussing Koons’ loss both at the district court and appellate court level, the author looks next at the impact of Campbell v. Acuff-Rose as it applies to appropriation art and finds that appropriation art is not protected under the transformative  use standard set out in Acuff-Rose.  However, because of the importance of appropriation art as a significant art movement in the late twentieth century, Quentel looks for a way to protect this art form that is an important contributor to culture.
The article next looks at the idea of compulsory licensing. Compulsory licensing pits the rights of the appropriation artist against the rights of the artist/creator who made the image that is being appropriated.  This again raises the issue of artists’ moral rights as opposed to a more economic approach.  Quentel also sees courts making determinations relating to copyright and appropriation art as needing to  look to the customs and practices of the visual art industry. Here the author privileges the work of the appropriation artist. “Artists who are able to justify the artistic decisions they have made regarding the decision to appropriate images into a single work of art should not be found to have infringed merely because they have appropriated the copyrighted work of another. By creating new works, artists are moving society and the art world forward… thereby satisfying the goals of the Copyright Act.”  Quentel stresses the policy goals of copyright law over a narrow reading of the statute.

Carlin, John. “Culture Vultures: Artistic Appropriation and Intellectual Property Law.”  Columbia VLA Journal of Law & the Arts 13 (1988): 103-143.

This is a comprehensive article written around the time of Jeff Koons Banality show which gave rise to litigation over appropriation art and copyright. Carlin takes as a basic premise that the Copyright Act and its legislative history provide for an expansive reading of fair use particularly with respect to changes in technology. He argues that courts should also use this expansiveness when dealing with infringement issues in the context of  new artistic developments just as it does with new technologies.

Carlin offers an extensive discussion of artistic development over the twentieth century and how this development resulted in the movement labeled by art critics as appropriation art.  He looks at the conflict between copyright and artistic expression in the cases of artists like Warhol, Rauschenberg and Levine.  He finds that, like parody, the social criticism of appropriation artists should be granted fair use protection. “One could analogize the traditional educational purposes enumerated in the Copyright act to the role of vanguard artists in maintaining a balanced point of view with regard to media images that inundate our environment…Along the same lines appropriation art could be said to fall within the right to “comment” upon copyrighted property under section 107.” (p.123-124).

In his article, Carlin also draws a distinction between appropriation art products that are singular, such as paintings or sculpture, and multiples like prints of various types including photographs.  While Carlin acknowledges that some sort of licensing arrangement would be useful in some cases, his article makes a forceful argument for the importance of appropriation art in terms of contemporary society and, as a result, the need for some sort of fair use exception. The arguments in this early article are interesting to read in the light of the two Jeff Koons cases and Campbell v. Accuf-Rose.