Koons - fair use or copyright infringement

PACA (Picture Archive Council of America) recently released an interesting follow up article highlighting a court case where fair use and copyright infringement were at the center of the legal battle. I am honestly surprised at the courts decision but you can decide for yourself.

Article below:

KOONS, THE SEQUEL; KOONS USE OF PHOTOGRAPH IN COLLAGE WORK FOUND TO BE FAIR USE AND NOT AN INFRINGEMENT BY THE 2ND CIRCUIT
Blanch v. Koons, 396 F. Supp 2d 476 (S.D.N.Y. 2005), aff’d, 2006 U.S. App. LEXIS 26786 (2d Cir. 2006).

Introduction
In three cases decided a decade ago, courts found artist Jeff Koons liable for willful copyright infringement in creating a sculpture based on a photograph of a couple holding a liter of puppies. In October 2006, however, the Second Circuit found that it was fair use for Koons to create a collage using part of a photograph created by plaintiff Andrea Blanch. The Second Circuit (the appellate court in NY) affirmed the District Court’s grant of summary judgment to all defendants. The different result is based on what uses courts now find to be “transformative".

Niagara

Silk Sandals

Background
The plaintiff in the recent case, Andrea Blanch, has been a photographer for over twenty years. In 2000, Blanch created a photograph entitled “Silk Sandals” as part of an editorial six-page article entitled “Gilt Trip” about metallic makeup that appeared in Allure Magazine. The photograph shows the lower part of a woman’s bare legs crossed at the ankles. Gucci silk sandals with an ornately jeweled strap are on her feet, which rest on a seated man’s knee in an airplane cabin.

Koons admitted that he copied, scanned and superimposed the legs, feet and Gucci sandals from the photograph, and incorporated them into a collage, which he then gave to his assistants to make the painting “Niagara” at issue in this case. Niagara was part of a seven-painting series commissioned by Deutsche Bank for $2 million, and displayed first at the Deutsche Guggenheim Berlin and subsequently at the Guggenheim Museum in New York. In the painting, Koons merely altered the orientation of the legs from a 45-degree angle in the photograph to vertically downward. Koons described Niagara as featuring “four pairs of women’s legs and feet which dangle over a landscape. Below them is a monstrous chocolate-fudge brownie, served with a mound of ice cream and flanked by trays of glazed donuts and apple Danish pastries.” According to Koons, his painting comments on “the ways in which some of our most basic appetites—for food, play, and sex—are mediated by popular images.”

Whether this use of the photograph in the resulting painting is infringing or not, depends on whether Koons can satisfy the court that his use is exempt from infringement based on the fair use doctrine. This doctrine is where the rights of a copyright owner are balanced against the First Amendments right of free speech and free expression. According the Copyright Act, the court must examine four fair use factors in making a determination.

The Court’s Analysis Of The Four Fair Use Factors

1. The Purpose and Character of the Use:
The Court emphasized that the most important part of the first fair use factor is whether defendant’s use is transformative. Crediting Koons’ explanation, the Court found that he used Blanch’s image for a “sharply different” purpose than Blanch’s purpose in creating the image. While Blanch wanted “to show some sort of erotic sense” and get “more of a sexuality to the photographs,” Koons used the image as “a fodder for his commentary on the social and aesthetic consequences of mass media.” The Court also viewed the character of the uses as different: The court found Blanch’s fashion photograph was “created for publication in a glossy American ‘lifestyles’ magazine,” unlike Koons’ “massive painting” commissioned by a leading world bank and exhibited in art-galleries.

2. The Nature of the Use-Commercial or Non-profit:
While Koons made a substantial profit from the sale of his work, the Court discounted the commercial use because the work was transformative, and did not even comment on the commercial aspects of Deutsche Bank’s commissioning of the work. The Court also found that Koons’ failure to seek permission for the copying was not in bad faith.

3. Amount and Substantiality of the Portion Used:
According to Blanch, her key creative decisions in the shoot “were the choice of an airplane cabin as a setting and her placement of the female model’s legs on the male model’s lap.” Koons extracted the legs, feet and sandals from the photograph. Again crediting Koons’ professed purpose, the Court found that he copied “only that portion of the image necessary to evoke ‘a certain style of mass communication'” and that this was “reasonable in relation to the purpose of the copying,” although Koons took approximately one-third of the photograph.

4. Market Effects:
The Court found that this factor greatly favored Koons, because Blanch had never published or licensed the photograph after publication in Allure, and never licensed any of her photographs for use in other visual art works. Koons’ use therefore did not “cause any harm to her career or upset any plans” for the photograph or for any other Blanch photographs.

The Court’s Fair Use Conclusion
The Court quoted considerably from Koons’ affidavit explaining his reasons for taking parts of Blanch’s photograph, but did not find it necessary to decide whether Niagara was a parody or satire, because Koons justified his borrowing as a commentary on mass communication. The Court therefore did not need to “depend on [its] poorly honed artistic sensibilities” to decide whether Koons had a “genuine creative rational for borrowing Blanch’s image,” or whether Koons merely borrowed the image “to get attention or to avoid the drudgery in working up something fresh.”

The Court gave heavy weight to the transformative purpose and nature of Niagara. So what did Koons do differently this time? Unlike earlier cases, this time Koons took only parts of plaintiff’s photograph, changed them by placing them at a different angle, and incorporated them in a collage with other elements. However, the Court seems to shift the transformative analysis from the nature of the transformation to the purpose of the person making it. This would seem to make it very difficult to determine if a use would be fair without first asking the photographer what their purpose was in creating the photograph. However, the court had no issue with Koons never seeking permission or inquiring Ms. Blanch for her purpose. Such a shift could create a slippery slope. Many photographs are created for a narrow purpose, for example sports or commercials, and a user can easily profess a different purpose than that of the copyright proprietor. If a magazine cover featuring a male sports figure’s photograph is later used in an ironic collage billboard advertisement for women’s cologne, the purpose is clearly different; is that use fair? The shift in the court’s analysis to the purpose could be a dangerous move by pushing the balance between copyright owners’ exclusive rights and the public’s right to fair use in a direction that leaves copyright holders stripped of their right to make and license derivative works.

Simply because a photograph has not been previously licensed for an artistic use does not rule out the potential that it may be licensed for an art related use in the future. Particularly if you have a recently created image without any usage history, there would be no market in which to measure market harm. The fact that the image was used without a license in a market deprives the copyright owner of exploiting that market in the future. The court’s analysis of market harm heavily favored the infringer over the creator. One answer may be to list all uses, even artists reference as an available use for all images on a site, so there is an obvious market and license fee associated with the use.

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Posted by chad on 13:40, December 4 2006

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