This conclusion applies, the Court said, even though the sculpture was in ROGERS V. KOONS -A VICTORY a different medium. Koons' sculpture was based upon Rogers' pre-exlstlnq copyrighted photograph - and was OVER "APPROPRIATION" OF therefore a "derivative work" under the Copyright Act. The Act specifically provides that copyright protection in­ IMAGES cludes the exclusive right to create and license derivative works based upon the copyrighted work. "In By Michael D. Remer, ASMP Legal Counsel copyright law:' said the Court, "the medium ls not the message, and a t is basic law that when a photographer creates an change In medium does not preclude original image, that image is protected by copyright infringementII from the moment the shutter clicks. The copyright is I (It is worth.noting that in support of this owned by the photographer (assuming that it has not conclusion, the Court cited a 1924 been given up under work for hire or an all rights assign­ case which held that "a piece of statuary may be infringed by a picture ment). And unauthorized use of the image infringes the of the statuary:' The KQm court ob­ photographer's copyright. served that it was equally true that a SCUlpture may infringe a Clear enough - but apparently not to this "colorized" version of the photographer'S copyright. But those people who feel justified in "ap­ Rogers photograph. When Scanlon photographers also should under­ propriating" a photographer's saw the newspaper photograph, he stand the lesson of the 1924case- an copyrighted image for use in their art realized that it was not Rogers' unauthorized photograph of work In another medium. photograph, but a photograph of copyrighted work in any medium can Koons' sculpture. Scanlon told infringe.) Sculpture Based On Photograph Rogers - and Rogers brought a copyright infringement suit against Koons also argued that Rogers had to Such was the view of New York City Koons and the New York City art show "substantial similarity" between sculptor Jeff Koons, who created a gallery eXhibiting the show. Rogersv, the photograph andthe SCUlpture. and sculpture copied from California Koons and Sonnabend Gallery Inc. that differences in size, texture and photographer Art Rogers' U.S. District Court, Southern District of color precluded such a showing. The copyrighted photograph. The New York, 89 Civ. 6707 (1990). Gaurt called this argument "the dis­ a photograph,created in 1980, depicted credited 'SUbstitute medium' argu­ a seated couple holding eight puppies Infringement Found ment in a different form." The test of on their laps. The photograph. entitled substantial similarity in this jurisdiction "Puppies". was ptrbllahe-d in Koons did not deny that he "used" is "whether an average lay person newspapers and books. exhibited in Rogers' photograph as "source would recognize the alleged copy as an art museum. and reproduced ­ material" for his SCUlpture. The Court having been appropriated from the under license from Rogers - on noted that "Koons prefers to avoid the copyrighted work." There was "no notecards. verb 'copied,'..but added, "Semantics question," said the Court, that the test do not decide the issue" of copyright was met in this case - noting that Koons, Whose specialty is embodying infringement. Scanlon's friend had thought that the items of popular culture into sculp­ newspaper photograph of the sculp­ tures intended to comment on the so­ Koons asserted as a defense that ture was Rogers' photograph. cial scene. saw the notecard Rogers' copyright extended only to reproduction of Rogers' photograph the photograph "as a photograph", Not Fair Use while he was preparing for his and that the sculpture embodied only "Banality Show." Koons tore Rogers' "factual" and "non-copyrightable" ele­ Koons also argued that in any event copyright notice off the card. and sent ments of the photograph. his utilization of Rogers' photograph the photograph to an Italian workshop, was "fair use", and therefore did not with detailed instructions to make as The court had no diffiCUlty discarding infringe Rogers' copyright. exact a copy as possible in this argument It is true. the Court said, polychrome wood. The.resulting work that copyright protection'extends only The fair use doctrine permits limited - in an edition of four - was called to original expression, While purely use of copyrlnhted material without "String of Puppies" and made a part of factual information is in the public the permission of the copyright Koons' show. Each piece was 42 x 37 domain. But the Court found that this owner, when justified in the public inches in size, on a 67 x 31 inch base. distinction did not apply here. It was a interest. The Copyright Act gives Two ofthefoursold for$125.000each, "fact" thatthe Scanlons'dog produced these examples - criticism, com­ a third sold for $117,000, and Koons the litter of eight puppies, that they ment, news reporting, teaching, keptthe fourth as an "artist's proof"for thought the puppies were cute. and scholarship, or research. possible later sale. that they asked Rogers to photograph them. "But the manner The Court noted that the sculpture did A photograph of the SCUlpture ap­ in which Rogers arranged his SUbjects not fall within any of these statutory peared in a newspaper story about and carried out his photographer's art examples. There was a "faint sugges- Koons' show. A friend of the man constitute a protectible original act of depicted in Rogers' photograph, Jim expression." Continued on Page 12 Scanlon, called to tell Scanlon about ASMP BULLETIN, FEBRUARY, 1991 Continued From Page 6 critical point Is that the art rendering nized masters. And there can be no rights belong to the photographer, argument that rendering has been tion" by Koons that the SCUlpture, as and exercise of the rights without a an element of fine art - indeed, of all part of his "Banality Show", was in­ license from the photographer con­ of the arts - since time immemorial. tended to comment satirically upon stitutes copyright infringement) contemporary values. But, the Court But these undoubted facts - often said. the type of "criticism" or "com­ Based on this analysis of the falr use cited in defense ofthe appropriation of ment" contemplated by the Act is doctrine, the Court concluded that copyrighted work - surely beg the that which specifically addresses Koons' use of Rogers' photograph question. If an artist wants to render'a the copyrighted work itself. Here, the was not fair use. copyrighted image in a new art work, sculpture didn't criticize or comment a readyalternative toinfringementis at upon Rogers' photograph - "It Decision For Photographer hand -let the artist get a license from simply appropriates it" the photographer. The wellsprings of Accordingly, the Court found that artistic creativity are notlikelyto dryup The Court then turned to the four fac­ because of this simple requirement tors which the Copyright Act requires Koons had infringed Rogers' copyrlqht, and that Rogers was en­ tobetakenintoaccountindetermining Virtually all countries of the world ac­ Whether fair use applies. titled to an orderenjoining both Koons and the gallery from further infringing cord copyright protection to creators. use of the SCUlpture. Rogers also It is a propertyrightjustas surelyas the Firs~ the purposeand natureofthe use, rights which protect other forms of including whether of a commercial na­ sought $367,000 (the proceeds real­ izedfrom the sales ofthe sculpture) as property.Indeed,an artlst's copyrights iure or for nonprofit educational pur­ may be - and often are - the most poses. Although the SCUlpture is money damages. However, the Court has given Koons an opportunity to valuable property he or she may own. unquestionablY a work of art, it "is not Photographers would do well to be unsullied by considerations of com­ prove at trial what expenses he had incurred in creating the SCUlpture, and awareoftheseprinciples,andtoacton merce," The SCUlpture was actively them when they find that their images marketed, and fetched considerable would thus be entitled to deduct from the $367,000 figure. have been appropriated. Rogers V prices from the public. The Court con­ Ko.ons is an important indication that cluded that Koons' use of Rogers' The court dismissed Rogers' money the courts wlll recognize the validity of photograph was of a commercial na­ photographers' rights in such cases. ture. damages claim against the gallery, since hehad notshownthatthe gallery Second, the nature ofthe copyrighted knew of Koons'·infringement of the work. Where the copyrighted work is photograph. creative, and moreakin tofictionalthan JOIN SYNDEY BYRD IN factual work, courts are less likely to Appropriation and Copyright find fair use. Such was the case here. the Court found. ASMP has taken a vital interest in " Rogers v Koons since its inception. Third, the amount and substantiality of Matt Herron, then ASMP Northern BALI the portion used. Here, noted the California Chapter President and now 15 Days Across Indonesia Court, Koons appropriated the entire a National Board member, led the With Camera In Dand photograph. Chapter's effort to have the San Fran­ cisco Museum of Modern Art remove JULY 7·JULY 24, 1991 Advenbtrlng from Jakarta to Fourth, the effect of the use upon the the Koons SCUlpture from public dis­ Pangkalan Bun, Tal\lun Puling. Camp leaky potential market for or value of the play. Rogers' attorney, L.Donald Statln, TarUun Barapan. Denpasar, Tana TanYa, Pare Pare, Rantepao and a shing of copyrighted work. This is considered Prutzman, of New York's Stecher traditional villages In between­ the most important factor. Koons ar­ Jaglom & Prutzman, consulted with Travelling by air, 'kiotok', moton::oach gued that the sculpture did not impair me during the litigation. Mr. Prutzman and, occasionally, on foot­ ~ indeed, may have enhanced - the believes that the defendants may well Trekking through rainforests, crocodue­ haunted rivers, an orangutan research center, value of the photograph.