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."
"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."
"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.”