The legal rights that protect artwork primarily stem from the Copyright Act of 1976. In Section 107 of this act, there is a provision known as fair use that protects artists from copyright infringement. According to the U.S. Copyright Office Fair Use Index, fair use can be defined as a “legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” Fair use can be further divided into four factors: purpose and the character of use, nature of the copyright work, amount and sustainability of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. Each of these factors is taken into consideration when determining if an artwork qualifies for fair use. While education, scholarship, and research all qualify as activities that may require fair use, my paper will focus on artistic appropriation, parody, and criticism.
Artistic appropriation occurs when artists use pre-existing or “found” objects for their personal use without the explicit permission of the original creator. This type of artwork often acts as a vehicle for social parody, comedy, and criticism. By the late 20th century, artists pushed this practice to the extreme by “appropriating whole images, often copyrighted, and using them virtually unchanged in works attributed to the appropriator” (Ames 1477). The 1992 Rogers v. Koons lawsuit was the first published opinion that challenged the doctrine of fair use within the context of artistic appropriation. In this paper, I will examine the legal issues addressed in Rogers v. Koons. Additionally, I will investigate the contemporary significance of Rogers v. Koons as well as the precedent this case has set for future art appropriation, fair use, and copyright proceedings. Finally, I will discuss the 2013 Cariou v. Prince lawsuit as well as Sherrie Levine’s series After Walker Evans to further outline the limits of fair use in the United States.
In 1980, Art Rogers was commissioned by Jim Scanlon to photograph Puppies, an image, though unknown at the time, that would transform the landscape of fair use and copyright law in the United States. In this photograph, Scanlon and his wife are sitting on a wooden bench while holding their eight new german shepherd puppies. After the Scanlons purchased their prints for $200, Rogers added Puppies to his personal catalog where it was later licensed to Museum Graphics as well as several other art-based companies (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)).
Seven years after its creation, Jeff Koons bought a picture postcard of Puppies. Inspired by this image, Koons created String of Puppies, a sculpture that was included in his 1988 exhibition “Banality Show” at the Sonnabend Gallery in New York (Ames 1475). “Banality Show” is a playful exhibition that pokes fun at suburban life and taste while critically commenting on American society that is driven by consumerism and mass production (Tate). Although Koons imbued his own artistic creativity, garish colors, exaggerated facial expressions, and “clown” dog noses, String of Puppies still remained a faithful replica of Roger’s Puppies. When Koons selected a foundry in Italy to carve the sculpture, he emphasized that “the work must be just like the photo” (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)). For instance, he told the artisans the “puppies need detail in fur. Details – Just Like Photo!” and the “Girl’s nose is too small. Please make larger as per photo” (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)). Three copies sold for a total of $367,000 while Koons kept the fourth for himself. When Rogers discovered that Koons appropriated String of Puppies in 1989, he quickly sued Koons and the Sonnabend Gallery on the basis of copyright infringement (Smith 1237-1238).
The legal issue addressed in Rogers v. Koons was whether fair use qualifies as a defense for Koon’s use of Roger’s photograph. Under the 1967 Copyright Act, Koons claimed fair parody use as his sculpture was parodying the “‘expression of a typical American scene’” as well as “the embodiment of a society in thrall to the ‘mass-production of commodities and media images’” (Francis 691). However, the appellate court did not share the same viewpoint as Koons and swiftly rejected his defense. Referencing the four factors of fair use inquiry, the court was unable to identify any form of a parody in String of Puppies:
- Purpose and Character of the Work In String of Puppies, Koons was parodying modern American society. However, in order for his sculpture to qualify for fair use parody, the copied work must directly comment, at least in part, on the original source material, “otherwise there would be no need to conjure up the original work” (Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992)).
- Nature of the Copyrighted Work The nature of the copied work was creative and imaginative and thus has the potential for financial return (Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992)). Rogers is a professional photographer whose goal is to make a financial profit from his work Puppies. As a result, the court held that Koon’s appropriation can harm the financial market of Roger’s photograph (Ames 1503-1504).
- Amount and Substantiality of Work Used The court ruled that Koons “went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers” (Rogers v. Koons, 960 F.2d 301, 311 (2d Cir. 1992)). By faithfully replicating the entire image of Puppies, Koons exceeded the permissible level of copying to qualify for fair use defense.
- Effect of the Use on the Market Value of the Original Due to String of Puppies’ commercial nature, it would prejudice Roger’s potential market for selling Puppies. As such, the court noted the disparities in profit that both Rogers and Koons would generate from their respective artworks: Rogers received $200 for the prints while Koons made over $100,000 for each sculpture sold (Ames 1504).
When the Second Circuit Court affirmed the Southern District of New York’s judgment, Koons lost in both courts. Ultimately, the court held that “the copying was so deliberate … [that] their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism” (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)). Koons acted in bad faith and was thus liable for copyright infringement.
However, not all legal scholars and art professionals agree with the courts’ holding. Applying the fair use doctrine to artistic appropriations can impose a number of problems and scholars such as Johnathan Francis and Marlin H. Smith offer their own examination of the Rogers v. Koons holding. As Francis notes, there was a disconnect between the lens in which the judges and the market would have viewed the sculpture: although the sculpture was a replica of the photograph, the intended audience would have made a distinction between the two works. By including String of Puppies in the “Banality Show” exhibition, Koons is providing context in which this sculpture should be viewed and understood (Francis 692). However, when both the district and circuit courts examined String of Puppies, Smith articulates they relied entirely on a black and white photograph (with similar dimensions as the postcard Puppies) and never saw the sculpture itself (Smith 1251-52). Smith suggests that for this reason, the court placed a greater emphasis on “the similarities of the works rather than the differences between them that support a finding of parody” (Smith 1252).
Regardless of the implications, the courts failed to realize Rogers v. Koons is an iconic lawsuit that transformed the landscape of copyright law within the visual arts arena. Having been cited in over 200 cases, Rogers v. Koons has been referenced in other well-known art lawsuits including Cariou v. Prince, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, and Blanch v. Koons. However, Rogers v. Koons only provides a glimpse into the complex legal framework and sets a precedent for copyright law that has set lasting implications. In order to understand the wide breadth tradition of artistic appropriation, we must further examine Rogers v. Koons in conversation with several other copyright lawsuits, including Cariou v. Prince as well as the works of Sherrie Levine.
In the 2013 Cariou v. Prince lawsuit, photographer Patrick Cariou sued Richard Prince and Gagosian Gallery for copyright infringement. In 2000, Cariou published Yes Rasa, a collection of portraits and landscapes taken during a trip to Jamaica. Prince, who was an appropriation artist, incorporated several of Cariou’s photographs into his 2007 Canal Zone series of works (Francis 695). On view at the Gagosian Gallery in New York, this collage project contains thirty altered images from Yes Rasta and is presented as a large grid on a single piece of plywood (Francis 696). The issue addressed in Cariou v. Prince was whether the artist who is appropriating copyright source material “must comment on, relate to the historical context of, or critically refer back to the plaintiff’s original work to qualify for a fair use defense” (copyright.gov).
When initially tried in the Southern District of New York, the court held that Prince and the Gagosian Gallery acted in bad faith; the artist’s collages were only minimally transformative and “not fair use under the Copyright Act” (Cariou v. Prince, 784 F. Supp. 2d 337, 98 U.S.P.Q.2d 1318 (S.D.N.Y. 2011)).
In light of its findings, the court weighed the four fair use factors and ruled that both Prince and Gagosian Gallery were liable for copyright infringement. However, this decision was overturned by the Court of Appeals for the Second Circuit who concluded that twenty-five of Prince’s works “manifest[ed] an entirely different aesthetic from Cariou’s photographs” as “Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work” (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). This decision demonstrates that Prince’s work existed within the framework of fair use and that artists do not need to comment on appropriated artwork containing copyrighted source material for it to be transformative. The court of appeals did not clarify if the remaining five works were entitled to fair use defense and remanded the issue to the district court for further consideration (“Copyright Law” 1230).
Similar to Prince, Levine was an artist whose primary practice was rephotography. However, rather than not liking her own work, she uses artistic appropriation to critique the feminist art tradition (French 194). By rephotographing male photographers such as Eliot Porter, Edward Weston, and Walker Evans, Levine attempts to “reclaim part of the art tradition for women artists” and break into “‘an oedipal relationship with artists have with artists of the past.’” (French 194) In 1981, the Evans estate threatened to sue Levine for her series “After Walker Evans” which included photographs from Evan’s iconic book Let Us Now Praise Famous Men. The Evans estate dropped the suit when Levine agreed to stop using his work (Ames 1484). To further complicate this dialogue, conceptual artist Michael Mandiberg created a digital appropriation of Levine’s copies of Evan’s photographs with the website www.aftersherrielevine.com (McCambell).
Ultimately, Rogers v. Koons and Cariou v. Prince as well as Sherrie Levine’s work demonstrate the uncertainty of copyright law within the context of the visual arts. There is a nuanced relationship between artistic freedom and copyright infringement that make the legal framework inherently complex and multifaceted. As a result, we regularly see artists such as Jeff Koons, Richard Prince, and Sherrie Levine facing allegations of copyright infringement. However, unlike Prince, Koons’ String of Puppies did not pass the copyright fair use test employed by the Second Circuit and appellate courts (French 195). Two facets that may account for this difference are the authorial intention of each artist as well as the extent to which the copyrighted source material is copied by the appropriator.
In Rogers v. Koons, the court held that String of Puppies was ultimately an “intentionally exploitative use of Roger’s Puppies‘ that was an infringement of the photographer’s profits” (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). The court also determined that the relationship between the copyrighted work and appropriated work was “overwhelmingly similar” and that “more of the original work is copied than necessary” (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). On the other hand, in Cariou v. Prince, Prince explained that he “[doesn’t] have any real interest in what [another artist’s] original intent is because … what I do is I completely try to change it into something that’s completely different” (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). Additionally, the Court of Appeals held that Prince’s works were transformative enough to qualify for fair use defense. While Levine was never taken to court by the Evans estate, her reasoning behind rephotography was not to replicate Evan’s expression, but rather to break into an artistic dialogue that was previously dominated by men. Additionally, there is no formal ruling as to whether the amount of copying Levine did was permissible in the eyes of the law. Regardless, these lawsuits show the complex history and tradition of artistic appropriation.
Koons, Prince, and Levine were not the first artists that have faced criticism for their appropriated artwork nor will they be the last. Perhaps the most recent allegation was made by sculpture artist Cady Noland who, for the third time, attempted to file suit against art collector William Schurman for restoring her work Log Cabin. Norland claimed the changes made to Log Cabin were so extensive that it constitutes an unauthorized copy of her work and thus an infringement of copyright (Kinsella). Another is Fairey v. Associated Press, where street artist Shepard Fairey sued the Associated Press when it began to accuse Fairey of using one of their photographs as source material for his poster “HOPE” (Kennedy). Despite the precedents set by Rogers v. Koons and Cariou v. Prince, modern copyright suits still face the ambiguous and narrow parameters in which fair use can be prescribed.
Ames, E. Kenly. “Beyond Rogers v. Koons: A Fair Use Standard for Appropriation.” Columbia Law Review, vol. 93, no. 6, 1993, pp. 1473–1526. JSTOR, www.jstor.org/stable/1123081. Accessed 16 Nov. 2020.
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)
Cariou v. Prince, 784 F. Supp. 2d 337, 98 U.S.P.Q.2d 1318 (S.D.N.Y. 2011)
Francis, Jonathan. “On Appropriation: Cariou v. Prince and Measuring Contextual Transformation in Fair Use.” Berkeley Technology Law Journal, vol. 29, 2014, pp. 681–716., www.jstor.org/stable/24119953. Accessed 16 Nov. 2020.
French, Robert A. “Copyright: Rogers v. Koons: Artistic Appropriation and the Fair Use Defense.” 46 OKLA. L. REV. 175 (1993), https://digitalcommons.law.ou.edu/olr/vol46/iss1/13.McCampbell, Rachel. “And So It Goes – Good Artists Borrow, Great Artists Steal … But Do They Sleep Well at Night?” Nashville Arts Magazine, Nashville Arts, https://nashvillearts.com/2016/01/goes-good-artists-borrow-great-artists-steal-sleep-well-night/.
Kennedy, Randy. “Shepard Fairey and the A.P. Settle Legal Dispute.” New York Times, New York Times, 12 Jan. 2011, https://www.nytimes.com/2011/01/13/arts/design/13fairey.html.
Kinsella, Eileen. “Cady Noland Said a Collector Restored Her Log Cabin Sculpture Beyond Recognition. A Judge Has Thrown Out Her Lawsuit – for the Third Time.” Artnet, Artnet News, 3 June 2020, https://news.artnet.com/art-world/judge-throws-out-artist-cady-nolands-third-attempt-1878105.
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)
Smith, Marlin H. “The Limits of Copyright: Property, Parody, and the Public Domain.” Duke Law Journal, vol. 42, no. 6, 1993, pp. 1233–1272. JSTOR, www.jstor.org/stable/1372784. Accessed 18 Nov. 2020.
“Cariou v. Prince.” Copyright.gov, Fair Use Summaries, https://www.copyright.gov/fair-use/summaries/cariou-prince-2dcir.2013.pdf.
“Copyright Law — Fair Use — Second Circuit Holds That Appropriation Artwork Need Not Comment on the Original to Be Transformative. — Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).” Harvard Law Review, vol. 127, no. 4, 2014, pp. 1228–1235. JSTOR, www.jstor.org/stable/23741426. Accessed 26 Nov. 2020.“Jeff Koons: Banality, Decadence, and Easyfun.” Tate, https://www.tate.org.uk/art/artists/jeff-koons-2368/jeff-koons-banality-decadence-and-easyfun.