NEW YORK—Artist Jeff Koons won the final round of a copyright-infringement lawsuit last October, when a U.S. appeals court upheld a previous ruling in his favor (ANL, 1/31/06). Koons had been sued by fashion photographer Andrea Blanch in October 2003 for his use of material from one of her photographs in a painting from his “Easyfun-Ethereal” series, commissioned in 2000 by Deutsche Bank in collaboration with the Solomon R. Guggenheim Foundation. Both were named in the lawsuit.
In his painting Niagara, the decision stated, “Koons copied, but altered the appearance of, part of a copyrighted photograph taken by the plaintiff Andrea Blanch.”
Judge Louis Stanton, of the U.S. District Court for the Southern District of New York, ruled in late 2005 that Koons, Deutsche Bank and the Guggenheim were not liable for copyright infringement because the “defendant artist’s incorporation of the photograph in a collage painting constituted fair use.”
Blanch’s photograph, Silk Sandals by Gucci, appeared in the August 2000 issue of Allure magazine. Part of a multipage feature on cosmetics, the photograph, shot at close range, depicts a woman’s lower legs and feet, adorned with bronze nail polish and Gucci sandals, resting on a man’s lap.
Koons scanned the image into his computer and included a version of it in Niagara. He used only the legs and feet but inverted the material so the legs dangle downward above the other elements of the painting, which includes colorful, highly-detailed images of pastries, a large chocolate-fudge brownie topped with ice cream and a tray of doughnuts. Three other pairs of women’s legs appear on either side of the Silk Sandals legs.
In an affidavit, Koons said the painting was inspired by a billboard he had seen in Rome. By contrasting women’s legs against a backdrop of food and landscape, he sought to “comment on the ways in which some of our most basic appetites—for food, play and sex—are mediated by popular images,” according to the written decision.
Among other things, the district court found that “the purpose and character of Koons’ use was ‘transformative’ and therefore favored by copyright law.” The court also ruled that “although the women’s legs are the ‘focal point of interest’ in Blanch’s photograph, the image is of limited originality.”
Soon after the ruling Blanch filed an appeal that was argued in May. The U.S. Court of Appeals for the second circuit affirmed the decision in “language that is even stronger than that of the district court,” Koons’ attorney John Koegel told ARTnewsletter.
According to the appellate court statement, “Koons asserts—and Blanch does not deny—that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. . . . The sharply different objectives that Koons had in using, and Blanch had in creating, Silk Sandals confirms the transformative nature of the use.”
Koons has been the subject of several previous lawsuits for copyright infringement. The artist was successfully sued by photographer Art Rogers for his appropriation of a postcard image of a couple holding a litter of eight puppies, called Puppies, for a sculpture he created called String of Puppies.
In 1992, an appeals court upheld a ruling that the usage was in violation of Rogers’ copyright. (The complaint alleged that Koons had sent the Rogers postcard to his team of artisans in Italy with instructions to recreate the image exactly but in three dimensions.)
Contrasting that case with Blanch’s lawsuit, circuit Judge Robert Katzmann noted, “The facts of this case are quite distinguishable from those of Rogers v. Koons, in which Koons slavishly recreated a copyrighted work in a different medium without any objective indicia of transforming it or commenting on the copyrighted work.”
Furthermore, stated Judge Katzmann, “Blanch failed to show that Koons’ use of her work actually harmed her in any way.”
Koegel points out that Koons “has had to live these past 14 years with the notion that he is an infringer.” Noting that copyright laws have changed considerably over that time, the attorney says, “Now he has the court of appeals coming out on his side. Now you have some vindication.”