''Rogers v. Koons'', 960 F.2d 301 (2d Cir. 1992),
is a leading
U.S.
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 states and a federal capital district, Washington, D.C. The 48 contiguous ...
court case on
copyright
A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...
, dealing with the
fair use
Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...
defense for
parody
A parody is a creative work designed to imitate, comment on, and/or mock its subject by means of satire, satirical or irony, ironic imitation. Often its subject is an Originality, original work or some aspect of it (theme/content, author, style, e ...
. The
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory covers the states of Connecticut, New York (state), New York, and Vermont, and it has ap ...
found that an artist copying a photograph could be liable for infringement when there was no clear need to imitate the photograph for parody.
Background
Art Rogers, a professional photographer, took a black-and-white photo of a man and a woman with their arms full of puppies. The photograph was simply entitled, ''Puppies'', and was used on greeting cards and other generic merchandise.
Jeff Koons, an internationally known artist, found the picture on a
postcard
A postcard or post card is a piece of thick paper or thin cardboard, typically rectangular, intended for writing and mailing without an envelope. Non-rectangular shapes may also be used but are rare.
In some places, one can send a postcard f ...
and wanted to make a sculpture based on the photograph for an art show on the theme of banality of everyday items. After removing the copyright label from the postcard, he gave it to his assistants with instructions on how to model the sculpture. He asked that as much detail be copied as possible, though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman.
The sculpture, titled ''String of Puppies'', became a success. Koons sold three copies of it for a total of $367,000.
Upon discovering that his picture had been copied, Rogers sued Koons and the Sonnabend Gallery for
copyright infringement
Copyright infringement (at times referred to as piracy) is the use of Copyright#Scope, works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the c ...
. Koons admitted to having copied the image intentionally, but attempted to claim
fair use
Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...
by
parody
A parody is a creative work designed to imitate, comment on, and/or mock its subject by means of satire, satirical or irony, ironic imitation. Often its subject is an Originality, original work or some aspect of it (theme/content, author, style, e ...
.
Opinion of the court
The court found both "
substantial similarity" and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying, a measure for evaluation. Thus the sculpture was found to be a copy of the work by Rogers.
On the issue of fair use, the court rejected the parody argument, as Koons could have constructed his parody of that general type of art without copying Rogers' specific work. That is, Koons was not commenting on Rogers' work specifically, and so his copying of that work did not fall under the fair use exception.
Award
The Court of Appeals determined that there were issues of fact and remanded the issue of damages to the District Court. Koons and Rogers, however, reached a confidential settlement.
[Inde, Vilis. Art in the Courtroom (Praeger, 1998) (Chapter 2: Jeff Koons: Piracy or Fair Use)]
See also
*''
Blanch v. Koons'', 2006 case where Koons was sued over the reuse of part of a photo, and prevailed on fair-use grounds
References
External links
*
{{Copyright law in the United States, state=collapsed
United States copyright case law
United States Court of Appeals for the Second Circuit cases
1992 in United States case law
Fair use case law
Parodies