Art Litigation: Jeff Koons Balloon Dog Case Settles

Story on the Jeff Koons balloon dog controversy settling here, bookends will be sold, but without Koon's name.   This is an example of an artist exerting control over the right of attribution.

Bookends look like this:

NY Times article here   SF Chronicle here


 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Jeff Koons, Richard Prince and Copyright Infringement

A good article in the Wall Street Journal here, with good images for comparison, on the claim of photographer Patrick Cariou that artist Richard Prince had ripped him off. It's not the first time that a photographer has been upset over Prince's actions. Someone sent me a NY Times article on the original photographer who did the Marlboro Man campaigns that Prince copied.

Now I know Cariou's name - Prince has made him and his work more famous, and the two will probably make more money in their respective careers following the tiff than before, no matter what the end result.

The WSJ article discusses cases involving Jeff Koons, the puppies case and the more recent Niagara case (image here). I met Jeff Koons last night for the first time at the National Arts Club where he was being presented with a medal.

We discussed his litigations, and he said that they have really changed his work.

In a visual online world where "free speech" for a visual artist may include defacing the work of another, we are going to see a lot of boundaries changing. What's fair today may not be fair tomorrow.

Appropriation Art and Wikipedia

In preparing for a presentation I gave last week at the National Arts Club on "Copyright and Creativity" I found some great wikipedia entries that were very helpful. The wikipedia entry for Appropriation (art) is found here. Also the Art Intervention entry is found here.

Both movements involve using, modifiying, stealing or vandalizing someone else's artwork. Sometimes litigation ensues.

I have inserted Marcel Duchamps' L.H.O.O.Q. (1919), where he puts a mustache and goatee on the Mona Lisa.

Contemporary artists continue to annoy, harass, steal, disrupt and dismay us. Decades later, their works will be valued and celebrated. My favorite is http://www.whitneybiennial.com/. The artist Miltos Manetas stole the Whitney's name and a very good domain name and used it to build a version of the Whitney's 2002 Biennial that included his web-based artworks. He told the press that he was going to surround the Biennial with U-haul trucks with screens showing web-based art that he likes. He never did, but he created a huge uproar.

The social or artistic value of a work that borrows so heavily from another's work is not always apparent. For example, the "appropriation artist" Richard Prince photographed Marlboro advertisements, took out the wording of the advertisement, and blew up the photographs without any other modifications. Pure copyright infringement? One of his photographs reached a world record for photography when it auctioned in 2005 for over $1.2 million.

The artist Jeff Koons (who recently won a case against a photographer whose image he placed in a painted collage) has similarly caused scandal, litigation, and has eventually reaped tremendous financial rewards for reinterpretations - or outright taking - of works under copyright.

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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