Jeff Koons: Copyright Infringement and Fair Use (Ch 8, 12)

On October 26, 2006 the Second Circuit decided the case Blanch v. Koons, --- F.3d ---, 2006 WL 30406666 (2d Cir. 2006). Professor Patry's discussion of the case is here. The Second Circuit affirmed the district court's grant of a summary judgment motion in favor of an artist, Jeff Koons, who had used a portion of a photograph from a fashion magazine in a large collage that he sold to the Guggenheim Museum for $2 million. Plaintiff complained of copyright infringement. Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the affirmative defense of "fair use." The "fair use doctrine" has been codified at 17 U.S.C. Section 107.

Fair Use Doctrine. 17 U.S.C. Section 107 provides "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (emphasis supplied).

Applicable Rule of Procedure. Rule 56 of the Federal Rules of Civil Procedure (the "FRCP") governs motions for summary judgment. Rule 56(b) provides that a defendant may "at any time" move with or without supporting affidavits with or without supporting affidavits for summary judgment. Advisory Committee Notes to the FRCP amendments made in 1946 show that the rule was permitted to permit a defendant to move immediately, without waiting to assert an answer. The Rule 56 language that was deleted in 1946 required a defendant to wait until after it served an answer.

In Blanch v. Koons, the Second Circuit noted that although the "fair use" defense is a mixed question of law and fact, it has on a number of occasions resolved fair use determinations at the summary judgment stage where there are no genuine issues of material fact.

Practice Tip for Lawyers: Fair use cases require a careful analysis of the four factors enumerated in 17 U.S.C. Section 107. Spend some time reading the cases cited by the Second Circuit. As you may note, much of the material to be submitted to a court to analyze in support of or against a fair use defense is pretty much available at the beginning of a litigation. Courts take artists "reasons" for taking or using a work extremely seriously, along with discussions of actual and potential markets. Much of the rest is essentially eyeballing the work and forming some fairly subjective opinions. The Second Circuit quoted the reason WHY Koons used the image at length including the following "By using an existing image, I also ensure a certain authenticity or veracity that enhances my commentary - it is the difference between quoting and paraphrasing - and ensure that the viewer will understand what I am referring to." The bolded language is mine, and presents a powerful argument for copying someone else's work of visual art (or even music) that will be persuasive to judges. At the outset of a case turning on fair use, consider skipping discovery and simply putting together thoughtful and detailed affidavits to move under FRCP 56. As in Blanch v. Koons, you may just get rid of the case.

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