Monday, March 4, 2024

Koons Wins Appeal and Right to Use Copyrighted Material

The Second Circuit court of appeals, which hears appellate cases for the state of New York, recently found that Jeff Koons’ use of a fashion photographer’s photo was protected by fair use.

In Blanch v. Koons, Koons admitted to using, and altering, a photograph taken and owned by Andrea Blanch which appeared in the August 2000 issue of Allure magazine, entitled “Silk Sandals by Gucci.”


Although Silk Sandals depicts a woman’s lower legs and feet, highlighted with bronze nail polish and Gucci sandals, and resting on a man’s lap within the space of a seeming first-class ariplane cabin, Koons only appropriated the legs and feet from the photograph and omitted the airplane context and the man’s lap. Koons also inverted the original orientation of the legs so that they dangled vertically downward rather than upward at a 45-degree angle. Koons also modified the color of the photograph and added a heel to one of the feet. Blanch sued Koons after seeing the Koons painting, Niagara, on exhibit at the Guggenheim Museum in New York. Niagara was one of seven paintings commissioned by Deutsche Bank AG and the Solomon R Guggenheim Foundation for $2 million.



 (Image of original Gucci advertisement)

Koons had already won a summary judgment decision at the trial court level in 2005, so this Appellate Court decision affirmed the lower court. In this appeal, Judge Louis L. Stanton, writing for the Second Circuit, ran through the four factors of fair use under copyright law and basically narrowed down their findings to two arguments: (1) Koons’ use was highly transformative and (2) the copyright owner suffered no harm to her market.

Although this may signal to some a reversal of Rogers v. Koons, where Koons had a sculpture made based on a copyrighted postcard image, the Second Circuit was clear to announce that in Blanch, the transformative use and lack of market harm to Blanch were aided by Koons’ commentary on the copyrighted work. Conversely, in Rogers, Koons failed to show any commentary while evidencing complete and willful disregard for the copyrighted postcard image and its notation ((c)). What seems to be crucial in the Blanch case, as noted by the Second Circuit, was that Blanch not only failed to show market harm but also that she sought copyright protection only after she saw Koons’ painting on exhibition, indicating a clear desire for a monetary windfall.

Also named in the lawsuit were The Solomon R. Guggenheim Foundation and the Deutsche Bank AG.


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Comments: 4

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  • The use of the image of the legs, even though it isn’t theft of the complete image, is still theft, pure and simple.

    It’s the equivalent of literary plagiarism, and I don’t understand the ruling. If Blanch was able to recognize the image, so could others. That’s, I’m sure, why Koons was forced to admit that he cut and pasted from the image. At the least, Koons should be compelled to pay a use fee to Blanch.

    But to a larger degree, stealing another artist’s image is unethicical, doing what’s wrong instead of what’s right just because one thinks that they can get away with it.

  • William Siebersma

    Seeing the use of a piece of an image as theft is a little simplistic, I believe. The collage of images is a visual comment utilizing modified bits of outside imagery. How much of the total image down to what level of detail does the owner control? The court ruled that there is a loss of control at some point, in this case a highly edited snippet of no monetary value to the owner. I imagine a plagiarism case would impose a similar standard, i.e. how many words must be copied before the owner is damaged?

  • “Koons only appropriated the legs and feet from the photograph.” Oh really? How about Koons appropriated the ideas, the juxtaposition, the positioning, the color and value contrasts, the idea of five pairs of legs etc. I don’t think it’s so much the so called idea of a “snippet” that’s the main point here. I think, more importantly, it’s the idea of the vision of the artist/photographer in depicting ideas (in this case different angles colored and highlighted differently of legs) that are solely that of the first creator. Koons did not come up with what is perhaps 50% of the visual impact of the painting. He highlighted the bronze nail polish and Gucci sandals? Come on! So if I were to crop the head of Michelangelo’s David and put a colored laurel crown on it, that would make it uniquely my own if I used it in my own painting or digital composition. I don’t think so! The cropped image would still be highly recognizable. Perhaps that was the problem – Blanch’s image wasn’t. Plagiarism – a rose by any other name is still a rose.

  • I find photography runs parallel to the music business. Business being the operative word. When the muzos started running out of creative talent a few years ago they started “sampling” yeah great if you don’t have any fresh ideas

    as they say. “it’s Art! darling”

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