The New York Law Journal reports today ($) on a big victory by Jeff Koons in a copyright infringement lawsuit brought against him by photographer Andrea Blanch. Koons used part of a photograph by Blanch in his painting "Niagara" (which you can see, and read about, here). The Southern District granted summary judgment to Koons on fair use grounds last year, and the Second Circuit has now affirmed.
Blanch's photo, entitled "Silk Sandals by Gucci" (you can see a mediocre black-and-white reproduction here), appeared in Allure magazine in 2000. Koons digitally scanned the photo and incorporated it into "Niagara," as one of the four pairs of legs depicted (the ones second from the left). He used only the legs -- "discarding the background of the airplane cabin and the man's lap on which the legs rest." He also "inverted the orientation of the legs so that they dangle vertically downward ... rather than slant upward at a 45-degree angle as they appear in the photograph." He added a heel to one of the feet, and modified the colors.
As Professor Patry says, "the case can be reduced to two fundamentals: Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." On the first point, the Court noted that when a work is "used as 'raw material' in the furtherance of distinct creative or communicative objectives, the use is transformative." Quoting the Supreme Court's opinion in Campbell v. Acuff-Rose Music, Inc. (the 2 Live Crew /Pretty Woman case), it went on to say "the test for whether 'Niagara's' use of 'Silk Sandals' is 'transformative' ... is whether it merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message" -- a test which, in the Court's view, "almost perfectly describes Koons's adaptation of 'Silk Sandals': the use of a fashion photograph created for publication in a glossy American 'lifestyles' magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space."
On the second point -- the lack of harm to her market -- Blanch had conceded that (1) she has never licensed any of her photos for use in works of graphic or visual art, (2) that Koons's use did not cause any harm to her career or interfere with any plans she had for "Silk Sandals" or any other photo, and (3) that the value of "Silk Sandals" did not go down as a result of this use. "In light of these admissions," concluded the Court, "it is plain that 'Niagara' had no deleterious effect upon the potential market for or value of the copyrighted work."
I think the Court clearly reached the right result here -- I agree with Professor Patry that it's a "commendable decision" -- but I have the same discomfort with it that I always have with any fair use decision: the nagging sense that it doesn't really provide much useful guidance going forward. Consider Rogers v. Koons, another fair use case which Koons famously lost. There, Koons took a postcard photograph of a group of puppies with their owners and turned it into a sculpture called "String of Puppies." (You can see the photograph and Koons's sculpture, side-by-side, here.) Is there any doubt Koons used the postcard "as 'raw material' in the furtherance of distinct creative or communicative objectives"? That he "added something new, with a further purpose or different character, altering the first with new expression, meaning, or message"? Doesn't that "almost perfectly describe Koons's adaptation of" Rogers's postcard photo: the use of an ordinary photograph created for sale in commercial card shops -- "with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning" -- as part of a large sculpture produced for exhibition in a leading New York art gallery? Professor Patry suggests that because "Niagara" used only portions of Blanch's photo, and as part of a collage, "it was easier for the court to see the transformative nature" of the use. Perhaps. But what if Koons hadn't dropped the lap on which the legs rested, or changed their direction, or added a heel or modified the colors? What if he did two of those things but not the others? When can an artist feel comfortable that he's done enough transforming to avoid a lawsuit? Maybe Judge Kozinski is right that "the real issue is that fair use doctrine is a red herring that we should just dump."