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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 prof its 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 Subcomittee, 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 peraits 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 prof its award by arguing that he is in fact responsible for those prof its, 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

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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 the pay for their illegal

conduct.

Thank you for giving me the opportunity to testify

before you today.

research."

377 F.2d at 167.

REY MUNCII SYSTEM

ROGERS v. KOONS

Clten F20 301 (2nd Ch. 182) 10 another. Thus, "it (is) in the district sponses obtained from the consumer surcourt's province as trier of fact to weigh vey, the district court found that J & J. the evidence, and in particular the opinion Merck failed to establish that commercials

American Home Products, were either false or misleading. Upon re

After reviewing the view, we conclude that the district court's record in this case, we conclude that Judge

findings were not erroneous. Therefore, Cedarbaum's evaluation of the survey we affirm the district court's denial of inquestions is not clearly erroneous.

junctive relief, and its dismissal of J & J • J & J Merck also argues that the dis- Merck's complaint. ence court erroneously adopted Dr. Wind's

Affirmed. opinion regarding the necessity of a concrolled study. It contends that, "[t]he ob ject of Mr. Ridgway's survey, like any advertising communication test, was to measure the impact of an ad upon consumers in the real world-not in some artificial or 'controlled)' environment." This contenuon lacks menit for two reasons. First, Judge Cedarbaum drew no conclusion from

Art ROGERS. Plaintiff-Appellee the fact that the survey lacked a control;

Cross-Appellant, indeed, her legal discussion makes no mention of it whatsoever. Second, we find J & jo Merck's opposition to a control study at

Jeff KOONS; Sonnabend Gallery, odds with its own proposed theory of Lan

Inc., Defendants-Appellantsham Act liability. i.e., that liability exists

Cross-Appelleer. for exploiling publicly held misperceptions even where the challenged advertising is

Noi. 234, 388 and 235, Dockets 91irerally truthful. In these types of cases.

7396, 91-7442 and 91-7540. The purpose of a control study is to identify

L'nited States Court of Appeals. the portion of the survey population that

Second Circuit. held exinnsic beliefs prior to viewing an advertisement-for example, the unsub

Argued Oct. 3, 1991. suantialed belief that aluminum causes Al

Decided April 2, 1992. zheimer's disease. Thus, a control would likely be indispensable proof in an action premised on J & J'Merck's theory. After Photographer brought suit against all. without such evidence it would be hard sculptor alleging infringement of his copyW imagine how a plaintiff could ever con- nghied photograph "Puppies" to create vincingly establish that there was, in the

sculpture "Sunng of Puppies." The United first instance, a public misperception for Suales Disinct Court for the Southern Dische defendant to exploit.

inct of New York, Charles S. Haight, Jr., Since J & J • Merck did not submit per J., 751 F.Supp. 474. as amended on reargusuasive extrinsic evidence that the chal- ment, 777 F.Supp. I, held that sculptor lenged Tu M:' commercials communicated a infringed photographer's copyright, issued false message to consumers by implication permanent injunction and turnover order, or otherwise, we cannot say the disinct and held sculptor in contempt for violation count was clearly erroneous in rejecting it. of turnover order. Sculptor appealed. Accordingly, its false advertising claims Photographer cross-appealed from denial must fail.

of damage award for infringing profits.

The Court of Appeals. Cardamone, Circuit COXCLLSION

Judge, held that: (1) photographer estab Based upon the literal message of the lished valid ownership of copyright in origichallenged commercials, and on the re nal work of art; (2) evidence supported 960 FEDERAL REPORTER, 20 SERIES

17

determination that sculptor copied photog. reasonable jurors could not differ on issue, rapher's protected work without authoriza. summary judgment on issue of unautha tion; (3) sculptor's unauthorized use of rized copying could be sustained. photograph did not fall within fair use doc. U.S.C.A. § 101 et seq. trine; (4) remand was necessary to deter

6. Copyrights and Intellectual Property mine amount of damages; and (5) holding

51 sculptor in contempt for violation of turnover order was proper.

In determining whether two works of

art are substantially similar for purposes Affirmed.

of Copyright Act, focus must be on similar.

ity of expression of idea or fact, not on 1. Copyrights and Intellectual Property similarity of facts, ideas or concepts them. 83(3.5)

selves. 17 U.S.C.A. § 101 et seq. Presumption of ownership arising

7. Copyrights and Intellectual Property from certificate of registration from United

75 States Register of Copyrights may be rebutted. 17 L'.S.C.A. § 410(c).

No copier may defend act of plagia.

rism by pointing out how much of copy he 2. Copyrights and Intellectual Property has not pirated. 17 U.S.C.A. § 101 et seq. 36

8. Copyrights and Intellectual Property Copyright protection extends only to

51 those components of work that are original to creator; fact that whole work is copy.

It is only where points of dissimilarity

between works exceed those that are simrighted does not mean that every element of it is copyrighted: however, quantity of ilar and those similar are—when compared originality needed to be shown is modest.

to original work of small import quantita17 U.S.C.A. § 101 et seq.

tively or qualitatively that finding of no

infringement is appropriate in copyright in3. Copyrights and Intellectual Property

fringement action. 17 U.S.C.A. § 101 et 6. 64

seq. Portion of photographers' photograph allegedly infringed by sculptor was original

9. Copyrights and Intellectual Property

53 work of authorship protected under Copy. right Act; photographer's inventive efforts Exploitation of copyrighted work for in posing group for picture, taking picture.

personal gain militated against finding of and printing picture sufficed to meet origi.

fair use of copyrighted material. 17 nal work of art criteria. 17 U.S.C.A. § 101

L.S.C.A. § 107.

10. Copyrights and Intellectual Property 4. Copyrights and intellectual Property

264 83(7)

Sculptor's "String of Puppies" could L'ndisputed direct evidence of copying not be deemed parody of photographers' of copyrighted photograph by sculptor. photograph for purposes of fair use docwho admittedly gave copy of photograph 10 wine where photographer's "Puppies" was artisans and cold them to copy it, was suffi- not, even in part, object of alleged parody; cient to support entry of summary judg. copied work must be, at least in part, object ment in photographer's favor on issue of of parody, otherwise there would be no unauthorized copying in copyright infringe need to conjure up original work. 17 ment action. 17 L.S.C.A. § 101 et seq.

L'.S.C.A. § 107. 5. Copyrights and Intellectual Property 11. Copyrights and Intellectual Property 89(2)

64 Where access to copyrighted work was Sculptor's claim that his infringement conceded, and accused work was so sub of photographer's work was fair use solely stantially similar to copyrighted work that because he was acting within artistic tradi

et seq.

2

L.S.C.A. § 107.

ROGERS v. KOONS

Cite u %0 F20 301 (2nd Cls. 142) cion of commenting upon commonplace man, of counsel), for plaintiff-appellee Art could not be accepted; copied work was not Rogers. object of sculptor's parody, as required for

Gregory F. Hauser, New York City (Wal

17 protection under fair use doctrine.

ter, Conston, Alexander & Green, P.C.,

New York City, Louis A. Colombo, John D. 12. Copyrights and Intellectual Property Parker, Michael K. Farrell, Baker & Hos53

tetler, Cleveland, Ohio, of counsel), filed a Where original work is factual rather brief on behalf of United Feature Syndithan fictional, scope of fair use doctrine is cate, Inc. as amicus curiae. broader. 17 U.S.C.A. § 107. 13. Copyrights and Intellectual Property WALKER, Circuit Judges.

Before: CARDAMONE, PIERCE and 64 Sculptor's unauthorized use of photog.

CARDAMONE, Circuit Judge: rapher's copyrighted photograph to craft sculpture did not fall under fair use doc

The key to this copyright infringement inne: among other things, sculptor's intent

suit, brought by a plaintiff photographer was to make substantial profit, sculpture against a defendant sculptor and the gal could not be considered "parody" of photo lery representing him, is defendants' borgraph. photograph was copied nearly in rowing of plaintiff's expression of a typical local, sculptor's work was primarily com

American scene smiling husband and mercial in nature, being produced for sale

wife holding a litter of charming puppies.

The copying was so deliberate as to sugo as high-priced art, and sculpture created likelihood of future harm to market for gest that defendants resolved so long as photographer's work. 17 U.S.C.A. $ 101 et

they were significant players in the art

business, and the copies they produced betseq.

Lered the price of the copied work by a 14. Copyrighus and Intellectual Property thousand to one, their piracy of a less well87(2)

known artist's work would escape being In apportioning profits for infringe sullied by an accusation of plagiarism. ment of photographer's copyrighted work, sculptor was entitled to retain profits to

BACKGROUND FACTS extent he could prove they derived solely from his own position in an world. 17

A. Rogers L.S.C.A & 50416).

We think it helpful to understanding this 15. Copyrights and Intellectual Propery appeal to set forth the principals' profes86

sional backgrounds. Plaintiff, Art Rogers, Contempt order for direct violation of

43-year-old professional artist-photog. tumover order in copyright infringement rapher, has a studio and home at Point case was entirely proper after defendant Reyes, California, where he makes his liv. sculptor attempted to ship infringing copy

ing by creating. exhibiting, publishing and of his sculpture from L'nited Suales after

ocherwise making use of his rights in his lurnover order was issued. 17 l.S.C.a. photographic works. Exhibitions of his ģ5031b).

photographs have been held in California and as far away as Maine, Florida and New

York. His work has been described in John B. Koegel. New York City (Frank French (“Le Monde"), British ("The PhoH. Wright, Michael D. Ripa, Cachy Wrighe 0") and numerous American publications, Isaacson. Wright Manning Ripa & Maloney. including the Journal of American Photog. of counsel), for defendants-appellanus Jeft raphy. Polaroid's Close-Up Magazine and Koons and Sonnabend Gallery, Inc. the Popular Photography Annual. Rogers'

L. Donald Pruczman, New York City (An- photographs are part of the permanent coldre R. Jaglom, Stecher Jaglom & Pruiz. lection of the San Francisco Museum of

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