NEW YORK—Jeff Koons won a recent lawsuit brought against him by New York City fashion photographer Andrea Blanch. The claim had charged Koons with using Blanch’s copyrighted work in one of seven paintings commissioned by Deutsche Bank and exhibited in the Solomon R. Guggenheim Museum in 2002.
Last November U.S. District Court Judge Louis L. Stanton granted Koons’ motion to dismiss Blanch’s copyright-infringement lawsuit, determining that “Koons made fair use of the photograph as a matter of law.”
Blanch’s photograph, which appeared in the August 2000 issue of Allure magazine, is titled Silk Sandals by Gucci and shows the lower part of a woman’s legs crossed at the ankles, resting on a man’s knee. The woman is wearing Gucci sandals, one of which dangles from her toes.
Koons acknowledged that his painting Niagara copied the woman’s legs, feet and sandals, omitting background elements in Blanch’s photograph and inverting the image so that the legs are vertical—feet down, rather than horizontal—as well as adding three more pairs of women’s legs and feet.
Judge Stanton labeled Koons’ use of Blanch’s imagery “transformational,” legitimizing Koons’ actions under the fair-use provision of the federal copyright law.
Blanch’s attorney Robert W. Cinque told ARTnewsletter that he planned to file an appeal, by Feb. 15, which would require a response from Koons within 30 days. Oral arguments could be scheduled for April.
Calling Koons a “serial infringer,” Cinque faulted Judge Stanton for not letting the question of fair use go to a jury: “Judge Stanton said Blanch’s work is barely creative, that the quality of copyright protection for the crossed legs is very weak. We disagree.”
Koons has been sued successfully on three occasions by photographers whose images his artwork has parodied or quoted.
Cinque likens Koons’ use of Blanch’s crossed legs to the artist’s appropriation of a photographic postcard image by Art Rogers of a couple holding a litter of eight puppies, called Puppies, for a sculpture the artist created called String of Puppies. In 1988 a court found the usage in violation of Rogers’ copyright.
For the sculpture, the complaint alleges, Koons sent the Rogers postcard to his team of artisans in Italy with instructions to recreate the image exactly but in three dimensions.
The artist similarly directed painters to follow the look of the legs and sandals in Blanch’s photograph precisely, while inverting the image and adding other elements. In both cases, Koons has claimed fair use on the basis of parody. He lost in the Rogers decision because the Federal District Court concluded that Rogers’ image was unknown by the people viewing Koons’ sculpture and therefore could not be identified as a parody; rather, the court said, it was mere copying. Koons was enjoined from showing and selling any more of those works. “The rules haven’t changed since then,” Cinque asserted. “Infringement is infringement.”
Koons’ attorney John Koegel, on the other hand, claims that legal opinion on what constitutes parody and fair use has changed since 1988. “String of Puppies was decided on old principles,” he told ARTnewsletter. “Subsequent decisions have created a better legal situation.” He adds that, unlike String of Puppies, “Niagara is more of a collage, with more elements used—and that those elements taken from Blanch’s work were more abstracted.”