Copyright and Fair Use

Jeff Koons, an “appropriation artist” who has been known for controversy in his career, has tested the limits of fair use under the Copyright Act in two cases: Rogers v. Koons, 906 F.2d 301 (2nd Cir. 1992), and Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006), with opposite results.

The United States Copyright Act grants to owners of copyrights exclusive rights under section 106, including the right of reproduction, preparation of derivative works, and to distribute copies of the copyrighted work.  17 U.S.C. § 106 (2007).  These exclusive rights, however, are subject to certain exceptions enumerated in the statute, including “fair use” as it is defined under section 107.  Besides certain kinds of academic and journalistic uses, a party can use a copyrighted work if the use falls within the factors described in section 107, namely: (1) the character of the use, (2) the nature of the protected work, (3) the amount of the work used, and (4) the effect of the use on the market for the copyrighted work.  Id. at § 107.

Under the first factor, the court weighs whether the alleged infringer stood to profit from his use of the copyrighted work without paying the customary price.  Brown v. McCormick, 23 F. Supp. 2d 594, 607 (D. Md. 1998).  While the fact that an alleged infringer profits from his use is not necessarily dispositive of his fair use defense, that there are profits without compensation to the copyright holder will weigh heavily against the “fair” user.  See Rogers, 906 F.2d at 309 (citing Sony Corp. v. Universal Studios, 464 U.S. 417, 449 (1984)).

Under the second factor, the court weighs whether the copyrighted work is more like a compilation of facts (like a phone book) or more like a creative work (like a painting).  More protection is offered to a work the more creative it is under this factor.  Brown, 23 F. Supp. 2d at 607.

Under the third factor, the court weighs how much of the copyrighted work was used by the alleged infringer in the subsequent work at issue, and how substantial that amount was as compared to the copyrighted work as a whole.  Taking a small portion of a copyrighted work that is not central to the work’s theme or thesis will tend to more often than not be protected as a fair use.  Id.

Under the final factor, the court weighs what impact the fair use had on the markets for the copyrighted work.  For example, if the copyrighted work was a photograph, and the alleged fair use was also a photograph that was sold to the same market as the copyright holder without compensation or royalties to the copyright holder, this factor would weigh heavily against a finding of fair use.  Id. at 608.

In Rogers, Jeff Koons had taken a photograph made by Art Rogers that Koons had purchased in the form of a post card in a tourist card shop and provided it to his artisans to copy for the creation of a sculpture that was to form a portion of Koons’ “Banality Show,” which opened on November 19, 1988 at Sonnabend Gallery.  Rogers, 906 F.2d at 305.  Koons provided specific instructions that the photograph was to be copied faithfully into the resulting sculpture, and visited the artisans weekly who were contracted to create the sculpture to ensure compliance with Koons’ directions.  Id.
The Second Circuit found that Koons’ use was not a fair use within the meaning of section 107 of the Copyright Act.  Id. at 312.

In Blanch, Koons had again appropriated an element of a photograph made by Blanch that was used in an commercial advertisement in the August 2000 issue of Allure Magazine.  Blanch, 467 F.3d at 247.  In this case, Koons took the legs and feet of the female model in Blanch’s photograph and then inverted the orientation of the legs so that they dangled vertically rather than horizontally as in the original photograph, and a heel was added to one of the model’s feet.  The modified legs and feet were then incorporated into a painting by Koons entitled “Niagra.” Id. at 248.

The Second Circuit found that Koons’ use was a fair use under section 107.  Id. at 259.  Why Blanch came out differently than Rogers, however, is not self-explanatory.

The Second Circuit in Blanch spends a fair amount of time around the idea that fair use is about the transformation of an existing copyrighted work into a new work with new insights and understandings about the original matter.  Koons, according to the Court, had aimed at a kind of criticism of the aesthetic employed by the advertisement in Allure Magazine, so that a neutral party would understand Koons to be commenting on the purpose of the protected photograph through his painting.  Id. at 252.

Interestingly, Koons’ sculpture that was based on Rogers’ photograph was in the context of criticism of the “banality” of this photograph, the consequent cheapening of art by its commercialization, and the resulting deterioration in the quality of society as a whole.  Rogers, 960 F.2d at 309.  The Court disagreed that Koons’ work was readily criticism in Rogers because the sculpture did not communicate that it was actually based on Rogers’ original photograph.  Id. at 310.  Of course, the painting in Blanch arguably did no better a job of announcing which or whose photograph it was actually based, even though Koons did do more work with his computer to crop and alter the original photograph before placing it into its new “context.”  Perhaps the lesson of these two cases is that painters should use the basic crop and rotate tools in Photoshop if they wish to infringe upon another’s copyrighted photograph!

Accepting that Koons’ main thrust is a social criticism of our society’s materialism, I would imagine that at least some artists (and some sophisticated members of the public) that view his work get his message.  If this wasn’t true, there would probably not be such a market to support his work.  Koons provokes a response from some artists that because his works are merely a commodity, they are not art at all.  Others are willing to accept his work in the tradition of Duchamp and Warhol, who made things that were on the fringe of what was acceptable as “art.”  Whether the general public understands what Koons’ work is about is probably a separate matter, just as it would have been for earlier artists that were pushing on the traditional notions and boundaries of art and criticism.

Does “fair use” turn on whether the public at large (the omnipresent “reasonable person” in the law), represented by the judge assigned to hear the case, understands the message of the work?  If the definition of art turned on this understanding, much art would not be recognized as “art” at all – at least not by the contemporaries of the work being defined.  Whether a work is “fair use” is a less philosophical question than whether a work is “art,” but I would argue that the question is not made easier by this distinction.  The authors of the Copyright Act acknowledged that the exclusive rights protected by the law had to be limited for the benefit of the public, and that courts (of the dubious options of the executive or the legislature) were in the best position to equitably balance these two competing interests.

But is this really a fair standard for adjudicating a copyright dispute?  The Second Circuit in Rogers stated that the “copied work must be, at least in part, an object of the parody….” They continue “[w]e think this is a necessary rule, as were it otherwise there would be no real limitation on the copier’s use of another’s copyrighted work to make a statement on some aspect of society at large.”  Id. I think most would agree that there must be some objective standards by which to find infringement or not.  But perhaps this reasoning was really just cover for the underlying feeling of the court that Koons was taking advantage of another without paying the customary fee.  The Second Circuit ultimately held in Rogers that Koons had acted in bad faith and profited substantially from his sculpture without compensating the original photographer. Rogers, 960 F.2d at 310, 305.  Somehow (maybe Koons got better attorneys to represent him), though, this sense of bad faith left the view of the court in Blanch, even though Koons most certainly profited from his unlicensed use of Blanch’s photograph (Koons’ works in both these cases sold for over $100,000 each). Blanch, 467 F.3d at 248.

Where does this leave artists?  Well, for most, these kinds of questions are academic, as most artists do not have the financial wherewithal to go through civil litigation to avoid paying a royalty to a photographer.  “Transforming” and not acting in “bad faith” appear to be the guide posts for acceptable fair use, but there would seem to be a rather wide field between these two guide posts.  Perhaps the next Koons lawsuit will settle things!  Stay tuned.

Published by


Maryland technology attorney and college professor.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.