Rogers v Koons

Rogers v Koons
960 F.2d 301 (2d Cir. 1992)
Rogers, a professional photographer, took a black and white photograph of a man and a woman holding several puppies in their arms entitled “Puppies”. The photo was used on greeting cards, post cards and other various merchandise. Jeff Koons, a prominent artist, saw the photograph, removed the copyright notice from the picture and created a sculpture from the photo. Koons asked his assistants to copy as much detail as possible from the photographs. The only changes made during the transition were larger noses on the puppies, blue fur, and the man and woman had flowers in their hair. The sculpture was named "String of Puppies" and became a success. Reportedly, Koons sold three of the sculptures for $367,000. Rogers, upon discovering that his work had been reproduced into a sculpture, brought suit against Koons and the Sonnabend Gallery for copyright infringement. Koons admitted he copied the work of Rogers, but claimed that his sculpture was a parody of the original work, and therefore permitted under the “fair use” defense.

Rogers brought suit against Koons in the United States District Court for the Southern District of New York, alleging copyright infringement and unfair competition under § 43(a) of the Lanham Act and under state law. District court limited Rogers' motion to the copyright infringement claim. Court found that Koons copied "Puppies" in "String of Puppies" and that this copying was not a fair use, and therefore infringement. The court entered a permanent injunction enjoining Koons and Sonnabend Gallery from making, selling, lending or displaying any copies of, or derivative works based on, "Puppies," and, pursuant to 17 U.S.C. § 503, requiring defendants to deliver all infringing articles to plaintiff within 20 days, including the fourth or artist's copy of "String of Puppies." Koons appealed and the case was before the Second Circuit.

Whether an artist who reproduces a photograph as a three-dimensional sculpture for commercial use as high-priced art can claim parody as a defense for copyright infringement, when the photograph itself was not the target of his parody.

No. Judgment of District Court is affirmed.

The Court first determined that “String of Puppies” was copied from the photograph “Puppies” based either on the direct evidence of copying, on the proof of access and substantial similarity. To establish an infringement of a copyright, a plaintiff must show both ownership of a copyright and that defendant copied the protected material without authorization. Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved. To the extent that these factors are involved, “Puppies” is the product of plaintiff's artistic creation and cannot be copied. The court found original elements of creative expression in the copyrighted work were copied and that that no reasonable juror could find that copying did not occur in this case. First, in this case, there is direct evidence of copying. Koons admitted he gave a copy of the photograph to his assistants with the explicit instruction that the work be copied. Koons' access to the copyrighted work is conceded, and the accused work is so substantially similar to the copyrighted work. If Koons had used the idea presented by the photo, there would not have been copyright infringement because ideas cannot be copyrighted, only the expression of the idea. Here, the court determined that Koons used the identical expression of the idea that Rogers created; the composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the ordinary observer test, there is substantial similarity and the district court properly held that Koons “copied” the original. Koons defends his use of the photograph under the privilege of “fair use.” Under § 107 an original work copied for purposes such as criticism or comment may not constitute infringement, but instead may be a fair use. The section provides a list of factors for determining when a use is “fair” including (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market value of the original. The Supreme Court has held that copies made for commercial or profit-making purposes are presumptively unfair.
Koons' conduct, especially the tearing off of the copyright mark on a Rogers notecard prior to sending it to his assistants, suggests bad faith in Koons’ use of plaintiff's work, and goes against a finding of fair use. Koons' substantial profit from his intentionally exploitive use of Rogers' work also goes against the finding of fair use. The Act provides that comment on or criticism of a copyrighted work may be a valid use under the fair use doctrine, however, “String of Puppies” cannot be considered a comment on or criticism of the photograph “Puppies.” Parody or satire, as the court defines 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. “It is the rule in this Circuit that though the satire need not be only of the copied work and may, as appellants urge of “String of Puppies,” 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." The court rejected Koons' claim of parody because it did not believe that Koons' was commenting on the photograph specifically and his argument that his sculpture is a comment on a materialistic society falls short of the rule. It is therefore unauthorized copying of the work and there is no valid defense of fair use.

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