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Koons Affirmed (Don't Blanch)

By Senior Copyright Counsel, Google Inc.

On November 7, 2005, I did a post on an SDNY decision by Judge Stanton finding fair use for alleged artist Jeff Koons' use of a photograph in a painting, Blanch v. Koons. Yesterday, the Second Circuit affirmed in a comprehensive opinion by Judge Sack and a concurring opinion by Judge Katzmann. (The link to the opinion includes pictures of the works).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. But window dressing -- stated rationales -- are picked up in later opinions and in briefs, so they are worth noting.

To recapitulate the facts briefly: plaintiff, for $750 dollars, did an advertisement for Gucci silk sandals. The photo depcited a woman's lower legs and feet (wearing the silk sandals) resting on a man's lap in an airplane cabin. The photo appeared in a six-page feature in Allure magazine. Koons was commissioned by Deutsche Bank and the Guggenheim Museum to create a series of seven paintings, which he later called "Easyfun-Ethereal." One work, "Niagara," was at issue. In Niagara, Koons (or more accurately, perhaps, his "assistants") depicted several sets of women's lower legs juxtaposed against food and landscapes. He intended to "comment on the ways in which some of our most basic appetites -- for food, play, and sex -- are mediated by popular images. ... By reconceptualizing these fragments as I do, I try to compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media." And Fox News is fair and balanced. Koons made good money on the project, but Blanch admitted Koons' use didn't harm her career, upset any plans she had for her work, or decrease its value.

In the traditional march through the four factors, the majority began with the transformative nature of the use. Koons' purpose and use were unquestionably transformative: Koons used a piece of plaintiff's work as part of an overall collage (the majority at one point turned collage from a noun into a verb, "collaged," a grammatical use I doubt is yet accceptable and hope won't become acceptable). On the commercial aspect of the first factor, we get to a point of dispute between the majority and the concurring opinion. Where a use is transformative, the majority, quoting an earlier panel opinion, stated that the secondary commercial nature of the use is "discounted." The concurring opinion thought that too broad a remark, but in so doing, made remarks I find odd. The concurring opinion felt that the context of the earlier panel's discounting remark occurred with a use that was within the preamble uses. Koons' use, Judge Katzmann felt, was not for a preamble use and therefore the discounting (which he then called a presumption) "does not apply." Indeed, he doubted the courts had "license" to engage in such discounting.

I don't follow either opinion's logic on this point. As I understand Campbell, one of the considerations in determining how to weigh the fact that the defendant made money off the use is to ask how that money was made: was it made by a superseding use or a transformative use.? If transformative, we don't pay a lot of attention to defendant having made money because the purpose of the use is not to usurp a legitimate market, and because most uses involve profit-making entities. We look therefore at the purpose of the use itself and not the status of the user. This has nothing to do with whether a particular use is listed in the (illustrative) preamble and certainly does not rise to a presumption; in fact, it has nothing to do with presumptions, but rather with a purely factual determination of why defendant did what he did. (Moreover, Koons' use was for criticism or comment, a use enumerated in the preamble).

The majority has a very helpful discussion on the parody versus satire dichotomy, which it effectively eliminates. The question, as the majority aptly states, is simply whether "Koons had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" He clearly did have such a rationale.

While there are other things of note in the opinion, I want to focus on only one more because it too was a point of difference between the majority and the concurring opinion; that is the question of bad faith. The relevancy of bad faith in fair use determinations is the subject of a lot of disagreement within the judges of the Second Circuit, seen again here. I agree with the majority that there is no authority for the argument that failing to seek permission by itself can constitute bad faith. If that were true virtually all cases involving fair use would contain an element of bad faith. The concurring opinion didn't necessarily disagree, but would have instead concluded that "whatever bad faith Koons may have exhibited in this case, as well as the limited commercial nature of his use, would not outweigh the much stronger considerations pointing toward a findng of fair use." True enough, but I don't understand the concurring opinon's reluctance to endorse the majority's sensible approach.

Full post as published by The Patry Copyright Blog on October 26, 2006 (boomark / email).