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ROGERS v. KOONS

Cite as 960 F.2d 301 (2nd Cir. 1992)

Thus, "it [is] in the district court's province as trier of fact to weigh the evidence, and in particular the opinion research." American Home Products, After reviewing the 577 F.2d at 167. record in this case, we conclude that Judge Cedarbaum's evaluation of the survey questions is not clearly erroneous.

First,

J & J Merck also argues that the district court erroneously adopted Dr. Wind's opinion regarding the necessity of a controlled study. It contends that, "[t]he obJect 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 merit for two reasons. Judge Cedarbaum drew no conclusion from the fact that the survey lacked a control; Indeed, her legal discussion makes no mention of it whatsoever. Second, we find J& J' Merck's opposition to a control study at odds with its own proposed theory of Lanham Act liability, i.e.. that liability exists for exploiting publicly held misperceptions even where the challenged advertising is terally truthful. In these types of cases, the purpose of a control study is to identify the portion of the survey population that held extrinsic beliefs prior to viewing an advertisement-for example, the unsubstantiated belief that aluminum causes AIzheimer's disease. Thus, a control would likely be indispensable proof in an action premised on J & J Merck's theory. After all, without such evidence it would be hard to imagine how a plaintiff could ever convincingly establish that there was, in the first instance, a public misperception for the defendant to exploit.

Since J & J Merck did not submit persuasive extrinsic evidence that the challenged TUMS' commercials communicated a false message to consumers by implication or otherwise, we cannot say the district court was clearly erroneous in rejecting it. Accordingly, its false advertising claims

must fail.

CONCLUSION

Based upon the literal message of the challenged commercials, and on the re

sponses obtained from the consumer survey, the district court found that J & J Merck failed to establish that commercials were either false or misleading. Upon review, we conclude that the district court's Therefore, findings were not erroneous.

we affirm the district court's denial of injunctive relief, and its dismissal of J & J° Merck's complaint.

Affirmed.

KEY NUMBER SYSTEM

Art ROGERS. Plaintiff-Appellee

Cross-Appellant,

Jeff KOONS: Sonnabend Gallery, Inc.. Defendants-AppellantsCross-Appellees.

Nos. 234, 388 and 235, Dockets 917396, 91-7442 and 91-7540. United States Court of Appeals. Second Circuit.

Argued Oct. 3, 1991.

Decided April 2, 1992.

Photographer brought suit against sculptor alleging infringement of his copynighted photograph "Puppies" to create sculpture "String of Puppies." The United States District Court for the Southern District of New York, Charles S. Haight, Jr., J., 751 F.Supp. 474, as amended on reargument. 777 F.Supp. 1, held that sculptor infringed photographer's copyright, issued permanent injunction and turnover order. and held sculptor in contempt for violation of turnover order. Sculptor appealed. Photographer cross-appealed from denial of damage award for infringing profits. The Court of Appeals, Cardamone, Circuit Judge, held that: (1) photographer established valid ownership of copyright in original work of art; (2) evidence supported

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1. Copyrights and Intellectual Property similarity of facts, ideas or concepts them

-83(3.5)

Presumption of ownership arising from certificate of registration from United States Register of Copyrights may be rebutted. 17 U.S.C.A. § 410(c).

2. Copyrights and Intellectual Property 36

Copyright protection extends only to those components of work that are original to creator; fact that whole work is copyrighted does not mean that every element of it is copyrighted; however, quantity of originality needed to be shown is modest. 17 U.S.C.A. § 101 et seq.

3. Copyrights and Intellectual Property 6. 64

Portion of photographers' photograph allegedly infringed by sculptor was original work of authorship protected under Copyright Act; photographer's inventive efforts in posing group for picture, taking picture. and printing picture sufficed to meet origi nal work of art criteria. 17 U.S.C.A. § 101 et seq.

4. Copyrights and Intellectual Property -83(7)

Undisputed direct evidence of copying of copyrighted photograph by sculptor. who admittedly gave copy of photograph to artisans and told them to copy it, was suffi cient to support entry of summary judg. ment in photographer's favor on issue of unauthorized copying in copyright infringement action. 17 U.S.C.A. § 101 et seq. 5. Copyrights and Intellectual Property -89(2)

Where access to copyrighted work was conceded, and accused work was so substantially similar to copyrighted work that

selves. 17 U.S.C.A. § 101 et seq.

7. Copyrights and Intellectual Property -75

No copier may defend act of plagia. rism by pointing out how much of copy he has not pirated. 17 U.S.C.A. § 101 et seq.

8. Copyrights and Intellectual Property 51

It is only where points of dissimilarity between works exceed those that are similar and those similar are-when compared to original work-of small import quantitatively or qualitatively that finding of no infringement is appropriate in copyright infringement action. 17 U.S.C.A. § 101 et seq.

9. Copyrights and Intellectual Property -53

Exploitation of copyrighted work for personal gain militated against finding of 17 fair use of copyrighted material. U.S.C.A. § 107.

10. Copyrights and Intellectual Property 64

Sculptor's "String of Puppies" could not be deemed parody of photographers' photograph for purposes of fair use doctrine where photographer's "Puppies" was not, even in part, object of alleged parody; copied work must be, at least in part, object of parody, otherwise there would be no need to conjure up original work. U.S.C.A. § 107.

17

11. Copyrights and Intellectual Property 64

Sculptor's claim that his infringement of photographer's work was fair use solely because he was acting within artistic tradi

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ROGERS v. KOONS

Cite as 960 F.2d 301 (2nd Cir. 1992)

tion of commenting upon commonplace could not be accepted; copied work was not object of sculptor's parody, as required for protection under fair use doctrine. U.S.C.A. § 107.

17

12. Copyrights and Intellectual Property

-53

Where original work is factual rather than fictional, scope of fair use doctrine is broader. 17 U.S.C.A. § 107.

13. Copyrights and Intellectual Property 61

Sculptor's unauthorized use of photographer's copyrighted photograph to craft sculpture did not fall under fair use docinne: among other things, sculptor's intent was to make substantial profit, sculpture could not be considered "parody" of photograph, photograph was copied nearly in total, sculptor's work was primarily commercial in nature, being produced for sale as high-priced art, and sculpture created likelihood of future harm to market for photographer's work. 17 U.S.C.A. § 101 et

seq.

man, of counsel), for plaintiff-appellee Art Rogers.

Gregory F. Hauser, New York City (Walter, Conston, Alexander & Green, P.C., New York City, Louis A. Colombo, John D. Parker, Michael K. Farrell, Baker & Hostetler, Cleveland, Ohio, of counsel), filed a brief on behalf of United Feature Syndicate, Inc. as amicus curiae.

Before: CARDAMONE, PIERCE and WALKER, Circuit Judges.

CARDAMONE, Circuit Judge:

The key to this copyright infringement suit, brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants' borrowing of plaintiff's expression of a typical American scene-a smiling husband and wife holding a litter of charming puppies. The copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a

14. Copyrights and Intellectual Property thousand to one, their piracy of a less well

-87(2)

In apportioning profits for infringe ment of photographer's copyrighted work, sculptor was entitled to retain profits to extent he could prove they derived solely from his own position in art world. 17 U.S.C.A § 504(b).

known artist's work would escape being sullied by an accusation of plagiarism.

BACKGROUND FACTS
A. Rogers

We think it helpful to understanding this

15. Copyrights and Intellectual Property appeal to set forth the principals' profes

86

Contempt order for direct violation of turnover order in copyright infringement case was entirely proper after defendant sculptor attempted to ship infringing copy of his sculpture from United States after turnover order was issued. 17 U.S.C.A. § 503(b).

sional backgrounds. Plaintiff, Art Rogers, a 43-year-old professional artist-photographer, has a studio and home at Point Reyes, California, where he makes his living by creating, exhibiting, publishing and otherwise making use of his rights in his Exhibitions of his photographic works. photographs have been held in California and as far away as Maine, Florida and New York. His work has been described in French ("Le Monde"), British ("The Pho

John B. Koegel, New York City (Frank H. Wright, Michael D. Rips, Cathy Wright____to") and numerous American publications, Isaacson, Wright Manning Rips & Maloney. of counsel), for defendants-appellants Jeff Koons and Sonnabend Gallery, Inc.

L. Donald Prutzman, New York City (Andre R. Jaglom, Stecher Jaglom & Prutz

including the Journal of American Photography, Polaroid's Close-Up Magazine and the Popular Photography Annual. Rogers' photographs are part of the permanent collection of the San Francisco Museum of

960 FEDERAL REPORTER, 2d SERIES

Modern Art, the Center for Creative Photography at the University of Arizona and Joseph E. Seagrams and Sons in New York City. He has taught photography at the San Francisco Museum of Modern Art.

B. Creating The Photograph "Puppies"

In 1980 an acquaintance, Jim Scanlon, commissioned Rogers to photograph his eight new German Shepherd puppies. When Rogers went to his home on Septem. ber 21, 1980 he decided that taking a picture of the puppies alone would not work successfully, and chose instead to include Scanlon and his wife holding them. Substantial creative effort went into both the composition and production of "Puppies," a black and white photograph. At the photo session, and later in his lab, Rogers drew on his years of artistic development. He selected the light, the location, the bench on which the Scanlons are seated and the arrangement of the small dogs. He also made creative judgments concerning technical matters with his camera and the use of natural light. He prepared a set of "contact sheets," containing 50 different images. from which one was selected.

After the Scanlons purchased their prints for $200. "Puppies" became part of Rog ers' catalogue of images available for further use. from which he, like many profes sional photographers, makes his living "Puppies" has been used and exhibited a number of times. A signed print of it has been sold to a private collector, and in 1989 it was licensed for use in an anthology called "Dog Days." Rogers also planned to use the picture in a series of hand-unted prints of his works. In 1984 Rogers had licensed "Puppies", along with other works, to Museum Graphics, a company that produces and sells notecards and post cards with high quality reproductions of photographs by well-respected Amencan photographers including, for example, Ansel Adams. Museum Graphics has produc ed and distributed the "Puppies" notecard since 1984. The first prinung was of 5.000 copies and there has been a second similar size printing.

C. Koons

Defendant Jeff Koons is a 37-year-old artist and sculptor residing in New York City. After receiving a Bachelor of Fine Arts degree from Maryland Institute College of Art in 1976, he worked at a number of jobs, principally membership develop

ment at the Museum of Modern Art in New York. While pursuing his career as an artist, he also worked until 1984 as a mutual funds salesman, a registered commodities salesman and broker, and a commodities futures broker. In the ten years from 1980 to 1990 Koons has exhibited his works in approximately 100 Group Exhibitions and in eleven one-man shows. His bibliog raphy is extensive. Koons is represented by Sonnabend Gallery, New York, Donald Young Gallery, Chicago, and Galerie Max Hetzler, Cologne, Germany. His works sell at very substantial prices, over $100,000. He is a controversial artist hailed by some as a "modern Michelangelo," while others find his art "truly offensive." A New York Times critic complained that "Koons is pushing the relationship between art and money so far that everyone involved comes out looking slightly absurd."

D Creating the Sculpture
"String of Puppies"

After a successful Sonnabend show in 1986. Koons began creating a group of 20 sculptures for a 1988 exhibition at the same gallery that he called the "Banality Show He works in an art tradition dating back to the beginning of the twentieth century This tradition defines its efforts as follows when the artist finishes his work, the meaning of the original object has been extracted and an entirely new meaning set in its place. An example is Andy Warhois reproduction of multiple images of Campbell's soup cans. Koons most famous work in this genre is a stain. less steel casting of an inflatable rabbit holding a carrot During 1986 and 1987 the sculptor traveled widely in Europe looking at materials and workshops where he might fabricate materials for the Banality Show He decided to use porcelain, mirrors and wood as mediums. Certain European studios were chosen to execute his

ROGERS v. KOONS

Cite as 960 F.2d 301 (2nd Cir. 1992)

porcelain works, other studios chosen for the mirror pieces, and the small Demetz Studio, located in the northern hill country town of Ortessi, Italy, was selected to carve the wood sculptures.

Koons acknowledges that the source for "String of Puppies" was a Museum GraphIcs notecard of "Puppies" which he purchased in a "very commercial, tourist-like card shop" in 1987. After buying the card, he tore off that portion showing Rogers' copyright of "Puppies." Koons saw certain criteria in the notecard that he thought made it a workable source. He believed it to be typical, commonplace and familiar. The notecard was also similar to other images of people holding animals that Koons had collected. Thus, he viewed the picture as part of the mass_culture—"resting_in the collective sub-consciousness of people regardless of whether the card had actually ever been seen by such people."

Appellant gave his artisans one of Rog. ers notecards and told them to copy it. But in order to guide the creation of a three-dimensional sculptural piece from the two-dimensional photograph, Koons com. municated extensively with the Demetz Studio. He visited it once a week during the period the piece was being carved by the workers and gave them written instruc tions. In his "production notes" Koons stressed that he wanted "Puppies" copied faithfully in the sculpture. For example. he told his artisans the "work must be just like photo-features of photo must be cap tured:" later. "puppies need detail in fur Details Just Like Photo!" other notes in struct the artisans to "keep man in angle of photo-mild lean to side & mildly for ward-same for woman." to "keep wom Ian's big smile." and to "keep (the sculp ture] very, very realistic:" others state. "Girl's nose is too small. Please make larger as per photo:" another reminds the artisans that "The puppies must have van ation in fur as per photo-not just large area of paint-vanation as per photo" (emphasis supplied).

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To paint the polychromed wood "String of Puppies" sculptures. Koons provided a chart with an enlarged photocopy of "Pup

pies" in the center, painting directions were noted in the margin with arrows drawn to various areas of the photograph. The chart noted, "Puppies, painted in shades of blue. Variation of light-to-dark as per photo. Paint realistic as per photo, but in blues." and "Man's hair, white with shades of grey as per black and white photo!" (emphasis supplied).

When it was finished, "String of Puppies" was displayed at the Sonnabend Gallery, which opened the Banality Show on November 19, 1988. Three of the four copies made were sold to collectors for a total of $367,000; the fourth or artist's copy was kept by Koons. Defendant Koons' use of "Puppies" to create "String of Puppies" was not authorized by plaintiff. Rogers learned of Koons' unauthorized use of his work through Jim Scanlon, the man who had commissioned Rogers to create "Puppies." A friend of Scanlon's, who was familiar with the photograph, called to tell him that what she took to be a "colonzed" version of "Puppies" was on the front page of the calendar section of the May 7, 1989 Sunday Los Angeles Times In fact, as she and Scanion later learned. the newspaper actually depicted Koons "Sting of Puppies" in connection with an article about its exhibition at the Los Angeles Museum of Contemporary Art

PRIOR PROCEEDINGS

Rogers brought this action against Koons and Sonnabend Gallery on October 11. 199. alleging copyright infringement and unfair competition under § 43(a) of the Lanham Act and under state law. Both des advised the district court at an early stage of the proceedings that, at least as to copyright infringement, disputed factual issues were unlikely and disposition on summary judgment would probably be approprate After completion of discovery, both sides moved for that relief on July 5, 1990. Rogers motion was limited to the copynght infringement claim. Koons and the Sonnabend Gallery sought summary judg ment dismissing all counts in plaintiff's complaint.

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