Citation. Blanch v. Koons, 467 F.3d 244, 80 U.S.P.Q.2D (BNA) 1545, Copy. L. Rep. (CCH) P29,269 (2d Cir. N.Y. Oct. 26, 2006)
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Brief Fact Summary.
Blanch (Plaintiff), a professional photographer, argued that a well-known artist named Koons (Defendant) infringed her copyright in an ad image, a part of which Defendant adapted and used in a commissioned collage painting.
Synopsis of Rule of Law.
An artist’s appropriation of a copyrighted image in a collage painting is a protected “fair use” under the copyright law where the other statutory fair use factors favors the artist.
Koons (Defendant), a well-known visual artist, was commissioned to create a series of seven billboard-sized paintings for $2 million. He is known for taking objects and images from popular media and consumer advertising and incorporating them into his artwork, a practice referred to as “neo-Pop art,” or “appropriation art.” In the creation of one of the paintings, titled “Niagara,” Koons (Defendant) used part of an ad that he had seen in Allure magazine. The ad, titled “Silk Sandals,” a photograph taken by Blanch (Plaintiff), a professional photographer, shows a woman’s lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in what appears to be a first-class airplane cabin. Defendant scanned the image into his computer and incorporated a version of it into “Niagara.” He included in the paining only the legs and feet from the photograph, leaving out the background of the airplane cabin and the man’s lap. He inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as shown in the photograph. He added a heel to one of the feet and changed the coloring of the photograph. The legs from the ad are second from the left among the four pairs of legs that form the focal images of “Niagara,” which depicts four pairs of women’s feet and lower legs dangling prominently over images of trays of convections with a glassy field and Niagara Falls in the background. Defendant did not seek permission from Plaintiff or anyone else before using the image. Plaintiff sued Defendant, claiming that Defendant had infringed her copyright in the image. Koons (Defendant) claimed fair use, and the district court granted summary judgment to him. The court of appeals granted review.
Is an artist’s appropriation of a copyrighted image in a collage painting a protected “fair use” under the copyright law where the other statutory fair use factors favors the artist?
(Sack, J.) Yes. An artist’s appropriation of a copyrighted image in a collage painting is a protected “fair use” under the copyright law where the balance of the statutory fair use factors favors the artist. Under 17 U.S.C. Â§ 107(1), the first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Koons (Defendant) claims, with no disagreement from Blanch (Plaintiff), that his purposes in using Plaintiff’s image are markedly different from Plaintiff’s goals in creating it. Plaintiff wanted to add sexiness to the sandals; Defendant wanted “the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.” The obvious different purpose of each supports a finding that the use was transformative. In this case, the copyrighted work is being used as “raw material” in the furtherance of distinct creative or communicative objectives, and therefore, the use is transformative. The test for whether “Niagara’s” use of “Silk Sandals” is “transformative” is whether it simply supersedes the objects of the original creation, or adds something new instead, with a further purpose or different character, changing the first with new expression, meaning, or message. Defendant’s use of the image in his painting fits this test nearly perfectly; the use is therefore transformative. Although Defendant profited from his paintings, which were publicly exhibited, his economic gains were not to the exclusion of broader public benefits of having the paintings displayed. Also, Defendant’s use of the image was satirical, and, therefore, the use must be justified by a genuine creative rationale for borrowing the image, rather than using it simply “to get attention or to avoid the drudgery in working up something fresh.” Defendant explained that the rationale for his use, which was not challenged by Plaintiff, was to use the image to satirize life as it appears when seen through the prism of slick fashion photography and to give the image veracity so the viewer could comprehend his commentary. Therefore, Defendant established the needed justification for his borrowing. Finally, regarding the first factor, there is an issue of whether Koon’s (Defendant) use was made in good faith. The only conduct of his challenged as made in bad faith is that he did not seek Plaintiff’s permission to reprint the image. There is however, no precedent that the failure to seek permission to use a copyrighted work is an act of bad faith where the use is otherwise fair. For these reasons, the first fair use factor strongly favors Koons (Defendant). The second fair use factor, under 17 U.S.C.& sect; 107(2), is “the nature of the copyrighted work.” If the work is creative, rather than factual, that weighs in favor of the copyright holder, and if the work has been published, that weighs against the copyright holder. In this case, the work was creative in nature, which weighs in Plaintiff’s favor, but it was published, which weighs in Defendant’s favor. Regardless, where a use is transformative, as in this case, the second fair use factor may be of limited usefulness since the use is not exploiting the work’s creative virtues. The third fair use factor, under 17 U.S.C. Â§ 107(3), is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The question becomes whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying. By extracting only the image of the leg, feet, and sandals, rather than also including the other elements of Plaintiff’s photo, Defendant made a reasonable use of the image that was not excessive for the purpose for which he wanted it; Defendant copied only that portion of the image necessary to evoke “a certain style of mass communication.” This factor favors Defendant. Finally, the fourth fair use factor, under 17 U.S.C. Â§ 107(4), is “the effect of the use upon the potential market for or value of the copyrighted work.” In this case, the question is whether the secondary use replaced the market for the original. Plaintiff acknowledged that she had not published or licensed “Silk Sandals” subsequent to its appearance in Allure, that she has never licensed any of her photographs for use in works of graphic or other visual art, that Koon’s (Defendant) use of her photograph did not cause any harm to her career or upset any plans she had for “Silk Sandals” or any other photograph, and that the value of “Silk Sandals” did not decrease because of Defendant’s alleged infringement. Accordingly, it is clear that “Niagara” had no harmful effect & quot;upon the potential market for or value of the copyrighted work,” and the fourth fair use factor greatly favors Koons (Defendant). Therefore, the balance of the factors favors Defendant and permitting the use, rather than preventing it, promotes the sciences and useful arts. Affirmed.
The relevancy of bad faith in fair use determinations is a subject of considerable controversy. Judge Katzmann, in a concurring opinion, while not disagreeing with the majority that there is no precedent that the failure to seek permission to use a copyrighted work is an act of bad faith (if it were, there would be an element of bad faith in every fair use case), would have instead concluded that “whatever bad faith Koons (Defendant) may have exhibited in this case, as well as the limited commercial nature of his use, would not outweigh the much stronger considerations pointing toward a finding of fair use.” He would therefore have avoided ruling that failure to seek authorization, even where doing so would have been feasible, is not relevant to the fair use inquiry.