Some of the most wrong-headed copyright law was developed by Post-Pop artist Jeff Koons–-by losing. It all started with Rogers v. Koons and Judge Haight (no relation & I’d deny it if there were just based on this opinion). In that case commercial photographer Art Rogers (yes, his name is Art with a capital A) sued Koons for copying his photograph of a seated couple holding numerous puppies on their laps. Koons sent the photo (he found it on a greeting card) to a art studio in Italy with instructions to reproduce it in a sculpture. Judge Haight easily ruled that this was copyright infringement and the 2d Circuit affirmed. In two subsequent SDNY cases, Koons had Judge Haight’s reasoning thrown back at him. (In these cases the photographer of “Boys with Pig” and the copyright owner of Odie were victorious.) Given Koons’ string of losses, photographer Andrea Blanch must have thought she won the jackpot when she saw her work reproduced in his collage painting “Niagra.” I don’t mean to comment on her motives, but the copyright lawyer she consulted probably envisioned attorneys fees.
There’s much to comment on here, including what the opinion does to fair use doctrine (especially transformative use & the parody/satire dichotomy) and what it does to the law’s treatment of appropriation art. But since I’ve written about these cases before, I’ll confine my post to an analysis of why the court reached a different conclusion in this case. As I read the opinion, I kept wondering why earlier Koons courts could not have taken the same approach. Let me first set out what’s the same in these cases. Koons has stuck with the same lawyer throughout, all the litigation has been in the 2d Circuit (SDNY), and this plaintiff’s profile is similar to Art Rogers’.
Now for the differences: 1) Here the plaintiff’s photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. In both the district court and 2d circuit opinion, plaintiff’s photograph is characterized as not being creative. (This affects the analysis under FU factors 2 & 3.) And as an advertisement, these courts are able to easily contrast it’s objective and message with Koons’ objective and message, thereby aiding Koons’ argument that his use is “transformative.” 2)The court “gets” Koons’ work. In the 1st Koons case, Judge Haight’s lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons’ 1st career was as a commodities trader & how he hires other artists to make his work.) After that, the 2d Circuit and subsequent SDNY courts replayed that assesment without any further opportunity for Koons to explain his work. The district court in this case produced a short opinion heavy on block quotes, including many from Koons’ affidavit. Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to “raw materials” such as Blanch’s photography.
In the end, justice was done here both to Jeff Koons and to the fair use doctrine. Unfortunately, the price of this legal success may be Koons’ status as bad boy of the art world. The doctrinal fit is so cosy that his work feels staid. It doesn’t push boundaries; it doesn’t piss off judges. His work is no longer illegal art, and, if we take him at his word that he’s created an entirely new work out of raw materials, it may not even be properly deemed appropriation art.