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 defendants on the copyright claim in December of 1990. (A copy of the trial court's decision is enclosed). The court rejected

Koons' argument that his copying of my work was a protected "fair use" under the copyright laws. Far from "commenting" upon or criticizing my work, the court held that Koons "simply appropriates it."

The district court ruled that I was entitled to a permanent injunction against Koons and Sonnabend 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 the infringing sculpture to me, and it is now stored in a warehouse in New York. I would have brought the Koons sculpture with me today were it not for the fact that transporting it here would be prohibitively expensive.

Since I could not recover attorneys' 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

infringing sculptures, or $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 Koons made from the sale of his infringing copies.

Koons then appealed the district court's determination of infringement to the Second Circuit 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. (A copy of the Second Circuit's opinion is enclosed). In yet another, even more emphatic, rejection of Koons' fair use argument, the Second Circuit 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 mistakenly 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 17 U.S.C. § 504 (c)(2)." However, section 412 of the Act, which the court may not have considered

when it wrote its decision, would seem to bar statutory damages because the photograph was not registered at the outset.

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 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 a determination of my damages, and no trial date has yet been set. 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 deal of time, effort and financial resources on the part of both myself and my lawyer. Koons has asked the court to receive testimony from numerous expert witnesses, and I have been obliged to retain experts to counter the positions that Koons' witnesses will no doubt advance. We face the prospect of an extended trial, and the possibility of yet another appeal after the jury determination of the appropriate damages.

We are now in the fourth year of this litigation. My attorney has invested hundreds of hours in the case, and we are precluded from recovering any of his fees from a defendant that the courts have held is a willful and egregious infringer. Furthermore, I have spent close to $40,000 in litigation costs alone to date, and I'm sure that many costs lie ahead as we move

closer to the damages trial.

Now I am required to go through an exercise that permits the infringer to put forth various

arguments as to why the vast majority of the profits earned from his illegal activity should be his, and I should be entitled to only nominal damages. If Koons is successful in these arguments, four years of litigation and thousands of dollars in attorneys' fees and litigation expenses will result in a minimal financial recovery from the infringer for me, the innocent party.

I respectfully suggest to you, Mr. Chairman, and to your colleagues on the Subcommittee, that this should not be so. The infringer should not be allowed to avoid paying my legal fees and expenses because of a technical requirement that my work be registered before infringement began. The infringer should not be able to force me to go through a damages trial because I cannot simply ask the court for an award of statutory damages up to $100,000, which is what the law permits for those few individuals who comply with the technical requirements of section 412. Nor should the infringer, especially one who has knowingly copied my work solely for profit, be afforded the opportunity to wiggle out of a substantial profits award by arguing that he is in fact responsible for those profits, despite his sole reliance on my work.

Few photographers or other individual copyright owners have chosen to risk what I have risked, and now I can see why. I have devoted over three years to this effort, and my health and family have suffered as a result. I have made great financial

sacrifices to keep this litigation going. And all of this sacrifice has been required to bring this case--one that the courts have held involved egregious misconduct--simply to the point of a full damages trial.

I firmly believe that I would have been spared much of this agony if I had been able to recover my attorneys' fees and statutory damages against Koons. It is questionable whether even someone like Jeff Koons would have dragged this litigation out all these years if in the end he would have been required to pay not only his, but my, legal fees, and it was clear that, at a minimum, he would owe me statutory damages.

On behalf of ASMP and all other photographers and individual copyright owners who may take action against future infringers, I urge the speedy enactment of H.R. 897. By making statutory damages and attorneys' fees available to all copyright owners, Congress will prevent the abuse of the system to which I have been subjected, and will enable persons like myself to take action against infringers and to make them pay for their illegal conduct. Thank you for giving me the opportunity to testify before you today.