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.
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.