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.” 

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.