Rogers v. Koons (960 F.2d 301, 2nd Circuit, 1992)

Rogers v. Koons continues the court's idea that satire should be protected under the concept of fair use. Rogers was a photographer who took a picture called "Puppies" of eight German Shepherds. The picture, according to the court document "drew on [Rogers's] years of artistic development." The photo was incorporated into Rogers's catalogue and was later turned into a notecard in 1984. The notecards have been publicly distributed.

Koons was an artist and sculptor who tended to make "absurd" and potentially offensive works. While looking for ideas for his "Banality Show", Koons found Rogers's picture "Puppies" on a notecard and decided to copy it. Koons's work was called "String of Puppies" and was almost exactly like the original photograph but with a few differences. Rogers sued for infringement, Koons claimed fair use protection. The court ruled in favor of Rogers. Koons appealed to the 2nd Circuit, who affirmed the ruling of the lower court.

In one of the most important statements made regarding satire, the court said:

"Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression of the original. Under our cases parody and satire are valued forms of criticism, encouraged because this sort of criticism itself fosters the creativity protected by the copyright law." (emphasis added by me)

 To consider satire critcism gives satire a stronger claim to fair use, as the definition of the fair use clause includes "critcism" as an example of a permissible fair use. Additionally, the statement in general equates parody and satire, making no distinction to their rights.

However, Rogers does limit to some extent the opinion in Elsmere. While considering if Koons's work is fair use, the court decides that while "It is the rule in this Circuit that though the satire need not be only of the copied work and may...also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work."

This narrows slightly Elsmere's broader protection of satire, but it does not deny satire outright. Instead of saying all satire is allowed, the court requires that there must be at least a part (though not defined how much) that comments on the original. This is still a noted departure from Posner, and leaves satire with significant freedom to create. 

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.