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Blanch v. Koons
Citations: 467 F.3d 244; 80 U.S.P.Q. 2d (BNA) 1545; 2006 U.S. App. LEXIS 26786; 2006 WL 3040666Docket: Docket No. 05-6433-CV
Court: Court of Appeals for the Second Circuit; October 26, 2006; Federal Appellate Court
An appeal was brought forth regarding whether Jeff Koons's use of a copyrighted image in his collage painting constitutes 'fair use' under copyright law (17 U.S.C. 107). Koons created this work for Deutsche Bank AG and The Solomon R. Guggenheim Foundation, incorporating elements of a copyrighted photograph by Andrea Blanch. Following its display at the Guggenheim Museum in New York, Blanch sued for copyright infringement. The district court ruled in favor of the defendants, asserting that Koons's use was fair. Koons is recognized as a prominent artist known for his 'neo-Pop' or 'appropriation art,' often using recognizable imagery from popular culture in his works. He has faced multiple lawsuits for copyright infringement in the past, particularly related to his earlier 'Banality Show' series, where courts consistently found his use of copyrighted images did not qualify as fair use. The current case pertains to Koons's later series, 'Easyfun-Ethereal,' commissioned by Deutsche Bank and Guggenheim, which collaboratively runs the 'Deutsche Guggenheim Berlin' exhibition space. In creating the 'Easyfun-Ethereal' paintings, Koons digitally manipulated images from advertisements and his own photographs, resulting in large canvasses that were displayed in Berlin. The painting 'Niagara' from this series is the focal point of the infringement claim. 'Niagara' is a painting featuring collaged images against a landscape background, prominently displaying four pairs of women's feet and lower legs overlaid on images of desserts, including a brownie, donuts, and pastries, with Niagara Falls in the distance. The legs extend from the top of the painting, filling the horizontal space. Artist Jeff Koons created the piece, inspired by a billboard in Rome that showcased women's legs, intending to explore how basic appetites for food, play, and sex are influenced by popular media. The painting incorporates a pair of legs adapted from a photograph by Andrea Blanch, a professional photographer whose work has appeared in major magazines like Vogue and Allure. The referenced photograph, titled 'Silk Sandals by Gucci,' features a woman's legs in an airplane cabin, showcasing Gucci sandals and bronze nail polish, and was part of a feature on metallic cosmetics in the August 2000 issue of Allure. Blanch had control over the photo shoot's creative elements, including the model and setting, aiming to convey a sense of eroticism. Koons, upon seeing 'Silk Sandals,' was inspired by its representation of women in advertising, scanning the image to incorporate only the legs and feet into 'Niagara,' excluding the original background. Koons altered the legs in his artwork 'Niagara' by changing their orientation to hang vertically and adding a heel to one foot, deviating from the original photograph 'Silk Sandals.' He did not seek permission from Blanch for this use. Financially, Deutsche Bank paid Koons $2 million for the 'Easyfun-Ethereal' series, with Koons earning $126,877 from 'Niagara.' The exhibition at Deutsche Guggenheim Berlin grossed about $100,000, though expenses are not detailed. The subsequent show at the Solomon R. Guggenheim Museum in New York had a net loss, with a reported profit of $2,000 when including sales from catalogues and postcards. In 2004, 'Niagara' was appraised at $1 million but has not been sold. Blanch was compensated $750 for 'Silk Sandals,' retaining copyright but not licensing or publishing the photograph afterward. She stated that Koons's use did not harm her career or affect the market value of her work. Blanch filed a lawsuit on October 10, 2003, claiming copyright infringement under the Copyright Act of 1976, later adding Deutsche Bank and Guggenheim as defendants. She alleged their knowledge of Koons’s history made them complicit in the infringement. However, on November 1, 2005, the district court ruled in favor of the defendants, determining that Koons's use constituted fair use. The court analyzed the four nonexclusive statutory factors of fair use under 17 U.S.C. § 107 and concluded that: 1) Koons's use was transformative, favoring fair use; 2) Blanch's work was deemed banal rather than creative, benefiting the defendants; 3) the amount of Blanch's photograph used was neutral due to its limited originality; and 4) Blanch's photograph did not affect the market for Koons's work, favoring the defendants. Consequently, the court granted summary judgment to the defendants. Blanch subsequently appealed. The standard of review for summary judgment is de novo, affirming if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fair use, while a mixed question of law and fact, can often be resolved at the summary judgment stage if no material facts are in dispute. The Supreme Court emphasizes that fair use is essential for promoting creativity and the progress of science and arts, as it balances the rights of copyright holders with the need for public access to creative works. Excessive copyright protection can hinder creativity, while fair use is critical to achieving the objectives of copyright law. The doctrine serves to mediate between the interests of copyright owners and those who reference their works. The fair-use doctrine, established in the Copyright Act of 1976, outlines four non-exclusive factors to evaluate fair use: 1) the purpose and character of the use (commercial vs. nonprofit educational); 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used relative to the copyrighted work as a whole; and 4) the effect on the market value of the copyrighted work. Notably, unpublished works can still qualify for fair use when assessed based on these factors. The determination of fair use is inherently context-sensitive, requiring a case-by-case analysis without rigid rules, as emphasized by the Supreme Court in Campbell. The introductory language in the statute indicates that the examples provided are illustrative, not exhaustive. All four factors must be considered collectively, in alignment with copyright’s purpose of promoting the progress of science and arts. The first factor, focused on the purpose and character of the use, is pivotal in determining fair use, emphasizing transformative use—where the new work adds new expression or meaning—as a major consideration, though not a strict requirement for fair use. Transformative works are viewed as beneficial to copyright's overarching goals. Secondary use that enhances the original work, utilizing copyrightable expression as raw material to generate new insights or aesthetics, is protected under the fair use doctrine. The court has clarified that merely exploiting the original work's creative aspects does not constitute transformative use. For instance, uses deemed non-transformative include displaying a photograph as decoration or creating a quiz based on a television show. In contrast, Koons' use of Blanch's image is justified as transformative due to his different artistic objectives, which focus on societal commentary rather than the original work's erotic intent. This distinction supports the claim of transformative use by indicating that Koons' goals diverge significantly from those of Blanch. The first fair-use factor emphasizes the purpose and character of the use, and Koons' assertion that he employs Blanch’s image to foster new understandings aligns with the transformative criteria established in prior case law. The use of a copyrighted work as raw material for distinct creative objectives confirms its transformative nature. The test for determining if 'Niagara's' use of 'Silk Sandals' is 'transformative' involves assessing whether it merely replaces the original work or adds new expression, meaning, or message. The adaptation by Koons exemplifies transformation, as it alters the original fashion photograph through changes in color, background, medium, size, and purpose, repurposing it for a painting in a German art gallery. Regarding commercial use, Koons profited significantly from 'Niagara.' The commercial versus nonprofit nature of the use is pertinent to the first fair-use factor under 17 U.S.C. § 107(1). The case of American Geophysical Union v. Texaco Inc. establishes that unfairness arises when a secondary user profits substantially from unauthorized use of copyrighted material. Courts typically do not uphold fair use claims when the secondary use primarily serves commercial exploitation, favoring the copyright holder. However, the Supreme Court in Campbell clarified that commercial nature alone does not determine fairness, emphasizing that many uses, including criticism and teaching, are often profit-driven. The commercial aspect is only a subfactor within the first fair-use factor; thus, a more transformative work can lessen the weight of commercial considerations against fair use. The district court's finding of substantial transformation, which downplayed the commercial nature of the use, was therefore deemed appropriate. Commercial use that merely duplicates an original work is likely to replace it in the market, leading to potential market harm. Conversely, a transformative use makes market substitution less clear, and harm may not be as easily inferred. While the commercial nature of the secondary use is relevant, significant weight is given to whether the new work is substantially transformative. In such cases, commercial aspects are less significant, as the public exhibition of art serves broader public interests despite potential economic benefits to artists and museums. The distinction between parody and satire is also crucial. While parody directly targets the original work, satire critiques broader genres or societal issues. The legal framework established in Campbell allows principles to apply beyond parody cases, highlighting that satire requires justification for borrowing from other works, as it does not rely on mimicry. The court does not assess the artistic merit of the works involved, focusing instead on whether the artist had a genuine creative rationale for using the original image rather than merely seeking attention or ease. Koons's use of the fashion photograph is seen as a means to satirize the nature of slick fashion photography, although the court refrains from imposing subjective artistic judgments. Koons articulated his rationale for incorporating Blanch’s image into his painting, 'Niagara,' emphasizing that the legs in the Allure Magazine photograph, 'Silk Sandals,' were essential to his artistic message rather than merely replaceable with original photography. He argued that the photograph exemplifies a common style in mass communication, reflecting a universal experience rather than a unique personal identity. By using this image, Koons aimed to critique the culture represented by Allure Magazine and believed that employing an existing image provided authenticity to his commentary. The court concluded that he established a justification for his use of the image, aligning with fair use principles. The discussion on bad faith indicated that the only allegation against Koons was his failure to seek permission from Blanch before using her photograph. However, no controlling legal authority considers the mere lack of permission as indicative of bad faith, especially if the usage is deemed fair. Previous cases affirm that fair use does not necessitate permission, and being denied permission does not negatively impact the fair use determination. Regarding the first fair-use factor, the court found that Koons’s appropriation was transformative, did not constitute commercial exploitation, and exhibited no significant bad faith, suggesting that this factor strongly favored the defendants. The second factor, concerning the nature of the copyrighted work, notes that certain works are more central to copyright protection, making fair use harder to prove when such works are copied. Two key distinctions in evaluating the second fair-use factor are whether the copyrighted work is expressive/creative (e.g., fiction) or factual, and whether it is published or unpublished. A greater allowance for fair use exists for factual works, while unpublished works have a narrower scope for fair use. In this case, Blanch's photograph "Silk Sandals" is published, which favors the defendants. The court disagrees with the district court's view that the photograph is "banal" and accepts it as a creative work. However, this creativity does not significantly impact the overall fair-use analysis, especially since Koons used Blanch's image transformatively to comment on its social and aesthetic meaning rather than to exploit its creativity. The third fair-use factor assesses the amount and substantiality of the portion used relative to the entire work. It considers whether the quantity and value of the copied materials are reasonable for the intended purpose. Koons argues that he incorporated Blanch's photograph into his art to reference certain facts, raising the question of whether his use exceeded what was justified for that purpose. Thus, the analysis involves not just the amount used, but also its quality and significance in relation to the overall work. The second fair-use factor acknowledges that "Silk Sandals" is a creative work, but its significance in the overall fair-use analysis is limited, particularly since Koons used it transformatively to comment on the image's social and aesthetic meaning rather than to exploit its creative aspects. The third fair-use factor examines the amount and substantiality of the portion used relative to the entire work, assessing whether the quantity and value of the materials used are reasonable for the copying's purpose. Koons argued that he incorporated Blanch's photograph to reference certain real-world facts. The analysis considers both the quantity and quality of the copied material. Koons's use of "Silk Sandals" was deemed reasonable as he focused on elements necessary to convey the photograph's essence, excluding key creative features like the airplane background and the model's positioning. The court found that the amount and substantiality of Koons's copying favored him, contrasting the district court's neutral stance on this factor. The fourth statutory factor in fair use analysis focuses on the impact of the secondary use on the market for the original copyrighted work, as outlined in 17 U.S.C. 107(4). The primary concern is whether the secondary use usurps the market of the original work, rather than merely suppressing it. The market for potential derivative uses is limited to those that original creators typically develop or license. In this case, Blanch has not published or licensed her work "Silk Sandals" post its appearance in Allure, nor has she licensed her photographs for graphic or visual art. She acknowledged that Koons’s use did not harm her career or plans for "Silk Sandals," nor did it diminish its value. Consequently, the court found that Koons's work "Niagara" did not negatively affect the market for "Silk Sandals," favoring Koons in the fair use analysis. The conclusion affirms that the district court's judgment aligns with copyright law's aim to promote progress in the arts and sciences. The court determines that allowing Koons's use would better serve this goal than restricting it, leading to the affirmation of no copyright infringement claims against him or the other defendants. The excerpt also notes that the transformativeness of a work is not a strict requirement for fair use, and all four statutory factors should be weighed collectively in relation to copyright purposes. Additionally, it suggests that exploiting new complementary markets can be indicative of fair use, contrasting with uses that serve as substitutes for the original work. Derivative works based on a copyrighted work do not qualify as fair use. A defense of fair use may apply if the defendant's work, despite having substantial similarities, serves a different function than the plaintiff's work. However, this approach conflicts with the Copyright Act's explicit provision granting copyright holders control over derivative works. If derivative works were outside a copyright owner's rights, they could be considered fair use if they are complementary or serve a different purpose. The clarity of the defendant's intent in using the copyrighted material aids the fair use analysis but is not a strict requirement. Unpublished works weigh heavily against fair use, although a 1992 amendment allows for fair use findings regardless of publication status, provided all factors are considered. The significance of the copied elements should be evaluated under the third fair use factor regarding the amount used. The Supreme Court has indicated that all four statutory factors should be reviewed collectively rather than prioritizing one. Even in instances where the copyright holder shows little interest in a derivative market, the law respects their creative choices. In this case, there is no evidence of a derivative market that the plaintiff could exploit linked to the defendant's use, and the assertion that the plaintiff could charge for further use is circular reasoning. Ultimately, fair use inherently results in some loss of royalty income to the copyright owner.