Schneider declined to share the proceeds of the infringement demand with me or the advertising agency because the $1,000 fee was not even enough to cover the $4,000 attorney's fee incurred in pressing the demand.

My options to redress this infringement were discouragingly limited. I had not registered the "dog eat dog" photograph; having taken more than 40,000 pictures during last year alone, I am not in a position to manage the paperwork or absorb the costs of registering each of my works. As a result, I have no hope of recovering attorneys fees or statutory damages if infringers steal my work.

Had I pursued my first option to file suit against the Lexus dealership, my legal fees certainly would have outstripped any potential court award. My other option to insist on a share

-

-- would have alienated a good

of Schneider's settlement money client for a negligible sum. Though angered by the infringement of a highly original photograph, I have reluctantly dropped the matter.

This is not first time I have faced such a situation. Three years ago, I produced a distinctive photograph of a sumo wrestler on a skateboard for an advertising agency representing an international shipping company. A different advertising agency later reproduced the photograph in a promotional flyer illustrating their creative work. They did not ask permission to use the photograph, I received no credit or compensation for the damage to the commercial value of my work, and there were no

promising remedies available to me. Again, legal fees would have more than offset any award resulting from cease and desist demands or a lawsuit.

I have no doubt that I will face other infringements of this kind during my career, and will be virtually powerless to guard against them, unless you pass the bill now under consideration.

Mr. HUGHES. Mr. Rogers, welcome.

STATEMENT OF ART ROGERS, PROFESSIONAL PHOTOGRAPHER, ON BEHALF OF THE AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, ACCOMPANIED BY DONALD PRUTZMAN, ESQ.

Mr. ROGERS. Mr. Chairman, my name is Art Rogers, and it is my pleasure and honor to appear before you today to testify on behalf of the American Society of Media Photographers, known as ASMP, in support of H.R. 897, the Copyright Reform Act of 1993.

I am a professional photographer working and living out of Point Reyes, CA, for the past 22 years. Like most ASMP members, I make my living solely by photography and, in particular, from the exercise of my copyright rights. I have been fortunate enough to achieve a degree of professional success in my career. I have had exhibitions of my photographs, and they have been shown in many parts of the United States. My work is widely published in magazines and journals in this country and abroad. Several of my photographs are included in the permanent collections of the San Francisco Museum of Modern Art, the Center for Creative Photography at the University of Arizona, and the Joseph Seagrams & Sons California Collection in New York City. I have taught photography at, among other places, the San Francisco Art Institute.

I have brought with me today several examples of my work-you should have in front of you a recent piece published in Life magazine-to give you an idea and some insight into the nature and quality of my work. There are also several note cards that are currently in print.

But it is not my success as a professional photographer that has led me to appear today before the subcommittee, but the story I have to tell you about my experience in the Federal courts over the past 31⁄2 years trying to protect the copyright in a single photograph entitled "Puppies," which is over there. I believe that my experience, despite its favorable outcome on the merits, demonstrates the pressing need to make statutory damages and attorneys' fees recoverable by all successful copyright plaintiffs.

Like most photographers, I have neither the time nor the staff to register the thousands of images that I create each year, but as a result of my not having registered just one of the many thousands of photographs I have created over the course of my career, I have been put through a long and difficult travail as I have attempted to vindicate my rights against a blatantly willful infringer. I am here to tell you how difficult that process has been despite my victory in the courts and to ask that the law be changed so that no one will be forced to make the sacrifices I have had to make to enforce my copyright rights.

My story begins in 1980 when I was asked to photograph eight new German Shepherd puppies by a client named Jim Scanlon. As is always the case when asked to create an image interpreting some aspect of the world, I exercised considerable creative judgment in deciding how the photograph should be composed and executed, including the arrangement of the models-which I decided in this case to expand to include both Jim and Mary Scanlon-also deciding on the lighting to be used and the photographic details. I made approximately 50 exposures to accomplish this, and after

the contact sheets were prepared I chose one in particular as the final photograph. The Scanlons purchased several prints for a few hundred dollars, and, as is my practice, I retained my copyright in the image and all others shot along with it and added this image to my catalog of works available for further reproduction and distribution. A large printed photograph is over here.

[Indicating photograph.]

Mr. ROGERS. In the ensuing years, my copyright in this image earned revenues and various reproduction opportunities. In 1984 I licensed its use in a note card to Museum Graphics. That company has a long history of distributing high-quality photography, including photographs by Ansel Adams, Imogen Cunningham, and Edward Weston. I believe that Museum Graphics has since completed two printings of 5,000 each of this "Puppies" image. You have in front of you today a copy of that.

In 1987, a New York City artist by the name of Jeff Koons purchased one of these note cards and proceeded, without my permission or knowledge, to convert my two-dimension image into a threedimensional sculpture. After tearing my copyright notice off the card, Koons supplied his artisans in Italy with the image and instructed them quite literally to copy the work. He instructed his workers how to paint the resulting sculpture by marking the photograph itself as it appeared on the note card, and before you is that sculptural rendition of my work.

Koons displayed his copy of my work at a show of his entitled "The Banality Show" at the Sonnabend Gallery in New York City in 1988. He made a total of four sculptures based on this photograph and subsequently sold three of them for $367,000. Displayed next to "Puppies" is the Koons sculpture.

In May 1989, Jim Scanlon, the gentleman in the photograph, received a call from a friend who had seen what she thought was a colorized version of my photograph in the Sunday edition of the Los Angeles Times. Jim got the paper and discovered that the newspaper photograph was not the photograph of "Puppies" but, rather, a photograph of the sculptural rendition of that photograph which was being shown in an exhibition at the Los Angeles Museum of Contemporary Art. Jim called my attention to this.

At this time, I had not filed for copyright registration for "Puppies" and had no reason to anticipate that my work would be copied by Koons. I soon found out, after consulting counsel to consider my legal options, that the absence of a prior registration foreclosed the possibility of recovering my legal fees even if I won the lawsuit and further meant that I could not be awarded statutory damages in lieu of proving actual damages and Koons' profits.

My first problem was finding a competent lawyer willing to represent me in a case in which our legal fees could not be recovered. That was a very difficult and frustrating experience, and only through good fortune was I able to retain Mr. Donald Prutzmanwho is here with me today to my right-to represent me in an infringement case against Mr. Koons.

We filed suit for copyright infringement and other causes of action against Koons and Sonnabend Gallery, which sold the sculptures, on October 11, 1989. After completion of discovery, the trial court granted summary judgment in my favor against both defend

ants on the copyright claim in December 1990. The court rejected Koons' argument that his copying of my work was protected by "fair use" under copyright law. Far from "commenting upon" or criticizing my work, the court held that Koons "simply appropriated it."

The district court ruled that I was entitled to a permanent injunction against Koons and Sonnabend Gallery prohibiting them from making, selling, lending, or displaying copies of "String of Puppies." It further ordered Koons to turn over to me the remaining copy of that work still in his possession, an order which Koons proceeded to defy by shipping it out of the country, which prompted the court to hold him in contempt. Only recently did Koons finally deliver the remaining copy of this infringing sculpture to me.

Since I could not recover attorney's fees and statutory damages from Koons, I asked the district court to award me money damages in the amount of his profits, which I believed were the full amount of the revenues earned from the sale of the three sculptures infringing, which was an amount of $367,000. Despite Koons' failure to set forth a detailed accounting of his alleged expenses which could be deducted from these revenues, the district court denied my summary judgment motion seeking an award of profits, thereby requiring a damages trial to be held to determine the appropriate amount of profits to be awarded. As of this date, that damages trial has yet to occur and I have not recovered a penny of the profits that Koons has made from the sale of his infringing copies.

Koons then appealed the district court's determination of infringement to the second court of appeals. After briefs were filed and an argument was heard before that court, it issued a decision on April 2, 1992, affirming the grant of summary judgment in my favor. In yet another even more emphatic rejection of Koons' fair use argument, the second circuit court found that Koons' copying of "Puppies" was done in bad faith and solely for profit and that Koons claim that his work was a parody was misplaced. As the court stated in its opinion, "It is not really the parody flag that appellants are sailing under but, rather, the flag of piracy."

The second circuit believed that I was entitled to a recovery of statutory damages. In fact, the court went so far as to suggest that "given Koons' willful and egregious behavior, we think Rogers may be a good candidate for enhanced statutory damages" pursuant to 504(c). However, section 412 of that act, which the court may not have considered when it wrote its decision, would seem to bar those statutory damages because the photograph was not registered at the onset.

Thus, in light of section 412, proving actual damages and profits will probably be necessary if I am to recover any monetary damages from Koons. Insofar as profits are concerned, the court indicated that Koons would have the opportunity at a trial to establish elements of profit not attributable to my work, which the court suggested may include Koons' "notoriety" and "his related ability to command high prices for his work."

Now the case is back before the district court for determination of my damages, and no trial date has been set yet. It is clear, however, that we face yet another long and difficult road in bringing this matter to a final conclusion and that it will require a great