In the April 1992 case of Art Rogers v. Jeff Koons, Koons infringed copyright in his work String of Puppies which was a three dimensional color copy of a photographic original of Rogers' that he found on a postcard in a tourist shop. The sources I have researched question the boundaries of art and when it is and is not fair use, and in which ways the guidelines can really have a great effect in shaping this gray area. Koons is sometimes referred to as an appropriation artist: an artist who quotes elements from other works and creates a new version of the original. In the case I choose to focus on he does not alter the change enough, it is arguably an exact copy of the original with minor changes. I use a later case in Koons' career - Blanch v. Koons - as a source to highlight what is fair use, and the development of our understanding of it. In my final paper I would like to use this as a comparison. Identity and Koons' call to parody are also central to the fair use argument and thus I have chosen some sources that discuss these important aspects, as a means to both strengthen and weaken Koons' argument (that his work is based on parody).

This article discusses the identity an art object assumes, which is inherent to understanding a work of art.  When Koons sent Roger's photo to his studio he is quoted in writing saying, "must be just like photo", and initially in the court case, he does not try and defend that he was not seeking another identity.  What is central to the Rogers v. Koons case is that when the case emerged at the beginning of the '90s, one of the four String of Puppies was on show at the Walker Art Center in Minneapolis.  The director refused to take it down, and although they are not quoted, critic Jon Carroll said that the director  "declared that Koons is right and Rogers has no case. That's not freedom; that's arrogance." 

Understanding the prestige and power of the artist is pivotal to the notion of the identity of the work and the identity of the artist.  Fair use should apply to every artist equally.  There was justice for Roger's in this case.  However, all artists are in the same position, regardless of how famous they are, in determining what can further their artistic creation and what can hinder it.  In the case of Rogers and Koons, both are artists, and it is only fair that they face the same challenges.  Fair use seeks to transform the original, thus transforming the identity.  It is apparent that Koons does not achieve this change in String of Puppies.

Koons won this case as the court argued that Koons' use of Blanch's work did not breach the fair use doctrine.  It is necessary to look at this later case in order to understand the court ruling of the earlier case: Rogers v. Koons.  By comparing the two cases we get a clearer idea of what fair use is and the complexities which are involved.  Moreover, the later case marks a more developed understanding, and that there is indeed change and progress within art law.

This article takes the 1992 case of Rogers vs. Koons, and, analyzes the effect it has had.  Fair Use more often than not puts the artist/author/lawyer/judge etc. in a gray area, wherein delineating the boundaries is very tricky.  It discusses the development of appropriation as an art form, and necessary guide lines that must be developed in order to understand and adhere to copyright laws.  Piracy is a huge point of controversy in the art world, as art is subjective and difficult to monitor.  The Rogers v. Koons should not be overlooked as anything less than a landmark in the history of art for bringing up some issues that are central to our everyday existence, especially in the western world where we are saturated by the mass media, mass culture and commercialism. 

This article is an important source bringing together the ideas we have been discussing in class about ownership, parody and the public domain.  It would be a very important source in discussing and interpreting the Koons v. Rogers case in more depth in terms of the public domain, the economic factors, and the First Ammendment Act.  The test for economic harm is whether the copy takes so much from the original that it "serves as a replacement for that original".  A photograph of String of Puppies in a gift store of an art gallery may very well do just that.  In other words people may be more incline to buy a postcard of the more famous artist, Koons' work, than from some less well-known artist, such as Rogers.

This book expresses clearly why Koons defense lost on the account of parody as fair use.  It goes through the four factors of fair use and explains why it breaches the doctrine comparing String of Puppies directly with the original black and white photograph by Rogers, Puppies.  It clarifies first and foremost that the copied work is not a parody of the original, as no one would have any idea of the object, Puppies photograph that Koons is parodying.  Secondly, fair use is more applicable to factual than fictional work, and Roger's work is a fictional piece.  The third factor, the amount and substantiality used are certainly breached, because Koons work is an almost exact copy of the black and white photograph.  Fourthly, whether the copy would affect the market of the original also seemed to fail meeting fair use standards.

Most importantly it clarifies why String of Puppies is not parody, and it points out why Koons v. Rogers is such an important case in the discussion of parody and what is fair use.

This Blog compares the Koons v. Blanch case and the Koons v. Rogers case.   The latter he lost because the work was not transformative enough and therefore not fair use.  In the Koons v. Blanch case, Koons used part of Andrea Blanch's Silk Sandals by Gucci photo in his painting entitled Niagra.  It was considered fair use because he took only the legs, added a heel, inverted the orientation and added color, thus, transforming the original and giving it a new meaning and identity.  Moreover, it did not threaten to harm the market of the original artist.

The blogger points out that although in the Koons v. Blanch case, Koons was not breaching copyright, it is diffcult to take from a case and apply it elsewhere in deciding what is fair use, which is what deems it such a gray area.  The blog argues against fair use as "the real issue is that fair use doctrine is a red herring that we should just dump."  Who decides when something is transformed enough.  For example, had the orientation of the legs in Niagara been tilted to a slightly lesser degree, or had the heel not been added, perhaps this would not have been enough.  One can argue that in String of Puppies, Koons has changed the scale, color, medium etc.  But in this example it was not enough and Koons lost.  The question is, when is it enough? And who is at liberty to decide?

The United States Court of Appeal for the Second Circuit lays out the Roger v. Koons case, and the arguments for each side.  Koons argues for the fair use arguement for parody, however, the court did not see the need to find parody in the photograph.  

Art Rogers, a professional art photographer, had been commissioned to make this photograph of a husband and wife holding the litter of puppies.  Jeff Koons, a prominent and controversial modern artist, found the postcard in what he described to be a tourist shop.  He apparently ripped off the copyright and sent it to his studio to be copied.  Koons argued that it was like many other postcards he owned, a product of mass culture.  And as one of the most successful artists of his time did not expect the less well known artist of this arguably mundane postcard to question him.

The document is central to understanding the depth of the case, in terms of the legal aspects and the rights of the artist, in this case two artists.  It begs the question and reality of why a more famous artist should have an advantage and monopoly over other less prominent artist’s works, and notes that this cannot be taken for granted.  This article goes into depth of how Koons’ work could be fair use and where the loopholes exist.  However, it is important to establish in law the ‘Ownership of Copyright in an Original Work of Art’, (I, § 8 of the United States Constitution) for a certain time period, which seeks to promote the progress of science and the arts.  Thus, Rogers’ has some claim over his work for a period of time, which he is entitled to.

Enough "substantial similarity" was found in Koons' three dimensional sculpture and the postcard, that the average person could see it, thus it was not transformative enough.  The court found copyright infringement for both this reason, and because Koons had removed the copyright notice unlawfully.

The New York Times article lays out the case, and asks three important questions, central to artists of the 21st century and our understanding of art today: "What is art? At what point does artistic freedom end and copyright infringement begin? And will enforcing copyright restrictions deprive artists of their First Amendment rights?" Contemporary artists like Jeff Koons and Damien Hirst are constantly pushing the boundaries.  In their defense lawyers argue that these artists take the everyday, the mass culture and the mundane, and elevate it to a new meaning.  By blowing the original up, or encasing it, the artist gives imparts a new found symbolism on the artistic work.  However, artists like Jeff Koons are increasingly testing those boundaries.  This is where fair use comes into play.  When is something not quite transformative enough?  When is the original work lost, and when this happens this is unjust to the original artist.  This article brings up these issues and gets us asking where the boundaries lie and how to decide when they are crossed.  It is a problem in the art world that is encapsulated in the controversy of Koons' work but reaches far beyond it. 

This article from Art Law department at Harvard explains that artists have certain rights within the creation of their works.  One-way is through appropriation art: the quoting of work from other artists.  Artists borrows elements from the original that may stay completely unchanged, however, the new work uses the original to create something new.  Appropriation art took place as far back as Raphael’s Judgment of Paris c.1515, which was since lost but one of the artist’s employees, Raimondi, made an etching of it, which proceeded to be copied over and over.  Three centuries later, Manet took part of this image and inserted it into his painting, Le Dejeuner Sur L’Herbe.  A century later, Picasso translated Manet’s work in a series of paintings.   Thus, artists’ have always relied on being inspired and influenced by earlier works.

The Roger v. Koons (1992) case, wherein Jeff Koons commissioned a sculpture of Art Roger's photograph postcard, and in so doing, violated Rogers’ copyright of his original work, is regarded as the primary modern day case of appropriation art.  Koons’ work copies the original exactly, although the puppies are painted a vivid blue, have bulbous noses, and the two figures are decorated with three flowers, which does not occur in the original.

Koons has been in a number of cases in which he has tried to argue for parody or satire, for example, in order to deem his work transformative enough from the original, and thus fair use.  Appropriation art is a major get-out-of-jail free card, that gives artists the ‘artistic license’ that is arguably essential in creating great works, as exemplified by the fact that the most well recognized artists have been doing this for centuries.