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960 FEDERAL REPORTER, 20 SERIES

Modern Art, the Center for Creative Pho tography 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.

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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 Col. lege 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 commodi. cies 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 Sew York Times critic complained that "Koons is pushing the relationship between ar and money so far that everyone in. volved comes out looking slightly absurd."

B. Creating The Photograph "Puppies"

In 1980 an acquaintance, Jim Scanlon, commissioned Rogers to photograph his eight

German Shepherd puppies. When Rogers went to his home on September 21, 1980 he decided that taking a pic. ture of the puppies alone would not work successfully, and chose instead to include Scanlon and his wife holding them. Sub stantial 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 tech. nical matters with his camera and the use of natural light. He prepared a set of "contact sheels." containing 50 different images, from which one was selected.

After the Scanlons purchased their pnncs for $200. “Puppies" became part of Rop: ers' catalogue of images available for fur. ther use, from which he, like many profes. sional photographers. makes his living "Puppies" has been used and exhibiced a number of umes. A signed print of it has been sold to a prvate collector, and in 1939 it was licensed for use in an anthology called “Dog Days." Rogers also planned to use the picture in a senes of hand-unced prints of his works. In 1983 Rogers had licensed “Puppies". along with other works. 1o Museum Graphics. a company that produces and sells nolecards and post cards with high quality reproductions of pholographs by well-respected Amencan photographers including, for example, an. sel Adams. Museum Graphics has produc: ed and distributed the “Puppies" norecard since 1984. The first prinung was of 5.000 copies and there has been a second similar size pronung.

D Creating the Sculpture

"Sining 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 in the beginning of the twentieth centur

This tradition defines its efforts as follow's when the artist finishes his work. the meaning of the original object has been extracted and an entirely new meaning sel in its place. An example is Andy Warhoi s reproducuon of multiple imapes .f l'ampoull's soup cans. Koons most famous work in this genre is a stain: less vleri casting of an inflatable rabbit holding is carme During 1986 and 1987 the sculplar traveled widely in Europe look. ing at malenals and workshops where he might fabncare materials for the Banality Show He decided to use porcelain, mir. rons and wood as mediums. Certain Euro pean studios were chosen w execute his

ROGERS V. KOONS

Clte wa KO F20 301 (2nd Cir. 19) porcelain works, other studios chosen for pies" in the center, painting directions che mirror pieces, and the small Demetz were noted in the margin with arrows Studio. located in the northern hill country drawn to various areas of the photograph. cown of Ortessi, Italy, was selected to The chart noted. “Puppies, painted in carve the wood sculptures.

shades of blue. Variation of light-to-dark Koons acknowledges that the source for as per photo. Paint realistic as per photo, String of Puppies" was a Museum Graph. but in blues." and "Man's hair, white with ics norecard of "Puppies" which he pur- shades of grey as per black and white chased in a “very commercial, tourist-like photo!" (emphasis supplied). card shop" in 1987. After buying the card. When it was finished, "String of Puphe core off that portion showing Rogers' pies" was displayed at the Sonnabend Galcopyright of "Puppies." Koons saw cer.

lery. which opened the Banality Show on win criteria in the notecard that he thought November 19, 1988. Three of the four made it a workable source. He believed it copies made were sold to collectors for a to be typical, commonplace and familiar. coul of $367.000; the fourth or artist's The notecard was also similar to other im.

copy was kept by Koons. Defendant ages of people holding animals that Koons Koons' use of "Puppies" to create "String had collected. Thus, he viewed the picture of Puppies" was not authorized by plainas part of the mass culture-"resting in uiff. Rogers learned of Koons' unautho the collective sub-consciousness of people rized use of his work through Jim Scanlon, regardless of whether the card had actually the man who had commissioned Rogers to ever been seen by such people."

create "Puppies." A friend of Scanlon's, Appellant gave his artisans one of Rog:

who was familiar with the photograph. ers' nocecards and cold them to copy it

called to tell him that what she took to be a But in order to guide the creation of a

"colonzed“ version of "Puppies" was on three-dimensional sculptural piece from the the front page of the calendar section of (wodimensional photograph. Koons com.

the May i. 1989 Sunday Los Angeles municated extensively with the Demeuz Times. In fact, us she and Scanlon later Studio. He visited it once a week dunng

learned the newspaper actually depicted the period the piece was being carved by

howns' "Sining of Puppies" in connection the workers and gave them written instruc:

with an article about its exhibition at the uons. In his "producuon notes" Koons los Angeles Museum of Contemporary stressed that he wanted "Puppies" copred

An faithfully in the sculpture. For example. he told his artisans the "work must be just

PRIOR PROCEEDINGS like photo features of photo must be cap Rogers omught this action against cured:" later. "puppies need detail in tur koons and Sonnabend Gallery on October Details - Just Like Photo.." other noten in

11. 1919. allering copyright infringement struct the artisans to "keep man in angle

and unfair compeution under § 43(a) of the of photo-mild lean wo side & mildly for

Lanham Art and under state law. Both ward--same for woman." 10 "keep wom

onden adriand the disinct court at an early an's big smile." and 10 "keep Ithe sculp

suake of the proceedings that, at least as to (ure) very, very realisuci" others suave.

cupunghe ininngement, disputed factual is. "Girl's nose is too small. Please make

sues were unlikely and disposition on sumlarger as per pholo:another reminds the

many udgmene would probably be appro arusans that "The puppies must have van

prace After completion of discovery, both alion in fur as per phola not just larve siden moved for that relief on July 5, 1990. area of paini-vanation as per photo" Rogen mowon was limited to the copy(emphasis supplied).

nghe ininngement claim. Koons and the To paint the polychromed wood "Sinng Sonnabend Gallery sought summary judg. of Puppies" sculptures, koons provided a ment dismissing all counts in plaintiff's chart with an enlarged photocopy of "Pup complaint.

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960 FEDERAL REPORTER, 20 SERIES

The district court held oral argument on

DISCUSSION November 26, 1990. In a December 10,

I Ownership of Copyright in an Original 1990 decision, described more fully below,

Work of Art it found that Koons copied "Puppies" in

One of the powers given Congress under "String of Puppies” and that this copying was not a fair use.

Art. I, § 8 of the United States Constitu. It therefore 'found

tion is: "To promote the Progress of Sciinfringement, 751 F.Supp. 474. Rogers'

ence and useful Arts, by securing for limit. motion for an infringing profits award was

ed Times to Authors and Inventors, the denied because the trial court believed

exclusive Right to their respective Writings there were disputed questions of fact con

and Discoveries." Madison noted that cerning their computation. As to Sonna: "[The utility of this power will scarcely be bend Gallery, the district court concluded questioned." The Federalist No. 43 (Madion February 22, 1991 that the record

son) at 279. He further observed that showed Sonnabend's as well as Koons' lia. copyright for authors was their right under bility for infringing profits. On March 27, common law. Id; see 2 Blackstone. Com. 1991 it entered a permanent injunction en. mentaries on the laws of England 407 joining Koons and Sonnabend Gallery from (Univ. of Chicago ed. 1979). As a result, making. selling. lending or displaying any Congress enacted a copyright law. 17 copies of, or derivative works based on, L.S.C. § 101 et seq. (1976), under which the "Puppies," and pursuant to li L.S.C. instant litigation was instituted. § 503, requiring defendants to deliver all

(1) To establish an infringement of a infringing articles to plaintiff within 20

copyright, a plaintiff must show both own. days, including the fourth or artist's copyership of a copyright and that defendant of "String of Puppies."

copied the protected material without auWhen defendants failed to comply with

thorization. See Weissmann v. Freeman, the turn-over order. Rogers moved to hold

868 F.2d 1313, 1320 (2d Cir.), cert. denied. defendant Koons in contempt. The pro

193 L'.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 ceedings on that motion revealed that nine

(1989). The Copyright Act makes a certifidays after the injunction was issued. Koons

cale of registration from the U.S. Register had loaned the fourth copy of "Sining of

of Copynghes prima facie evidence of the Puppies" to a museum in Germany and

valid ownership of a copyright, see 17

C.S.C. § 4101c), though that presumption of arranged for its shipment out of the l'nited Suales. After a hearing on May 1991 the

ownership may be rebutted, see Hasbro district court held Koons in contempl. dr.

Bmdley. Inc. 1. Sparkle Toys, Inc., 780

Fld 189, 192 (2d Cir.1985). Protection un. rected him to do whatever was necessary

der the copyright statute extends to pictorito effect the sculpture's return from Ger

al works. 17 U.S.C. § 102(aX5). For more many, and imposed a daily fine for conun.

than a century photographs have been held ued non-compliance 60 commence eight

to be copyrightable "writings" under Arti. days later.

cle I. § w of the Constitution. Burroun On May 28. 1991 we denied Twins mo Giles Lithographic Co. v. Sarony, 111 L.S. Lion to stay the injunction and the contempt

3. #SCt. 279, 28 L.Ed. 349 (1884) (phora penalty pending appeal, but delayed the graph of Oscar Wilde an original work of commencement of the daily fine until June i. 1991. From the finding of copyinxhi 121 Of the several issues before us. the infringement, the granung of a permanent first concerns the originality of "Puppies." injunction, and the turnover order appel- Defendanus do not challenge plaintiff's lanus Koons and Sonnabend appeal. RuR ownership of a valid copyright, but assert ers cross-appeals from the denial of an instead that the portion of Rogers' work award prior to crial for infnnging profius. allegedly infringed was not an original We affirm.

work of authorship protected under the

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ROGERS V. KOONS

Cite Wo Fad 301 (od Cir. 1992) 1976 Copyright Act. Since the law protects Twentieth Century-Fox Film Corp. D. authors' exclusive rights to their works, MCA, Inc., 713 F.2d 1327, 1829 (9th Cir. the cornerstone of that law is that the work 1983). protected must be original. See Feist Pub

Here, the trial court found original elelications, Inc. v. Rural Telephone Service

ments of creative expression in the copy. U.S. 111 S.Ct. 1282. righted work were copied and that the 1287, 113 L.Ed.2d 358 (1991). Thus, that a

copying was so blatantly apparent as not to whole work is copyrighted does not mean

require a trial. We agree that no reasonthat every element of it is copyrighted: able juror could find that copying did not copyright protection extends only to those occur in this case. First, this case presents components of the work that are original to

the rare scenario where there is direct evithe creator. Id. 111 S.Ct. at 1289. But the

dence of copying. Koons admittedly gave quantity of originality that need be shown

a copy of the photograph to the Italian is modest-only a dash of it will do. Id. at

artisans with the explicit instruction that 1287; I M. Nimmer & D. Nimmer, Nim. the work be copied. Moreover, the imporon Copyright $ 1.08{CII) (1991)

tance of copying the very details of the 1.Nimmer).

photograph that embodied plaintiff's origi(3) Elements of originality in a photo nal contribution—the poses, the shading. graph may include posing the subjects.

the expressions—was stressed by Koons lighting, angle, selection of film and cam

throughout the creation of the sculpture. era, evoking the desired expression, and

His instructions invariably implored that almost any other variant involved. See

the creation must be designed “as per pho Burrow Giles, 111 U.S. at 60, 4 S.Ct. at

10." This undisputed direct evidence of 282. 1 Simmer. § 2.08(ETI). To the ex

copying is sufficient to support the district tent that these factors are involved. “Pup court's granting of summary judgment pies" is the product of plaintiff's artistic (5) Further, even were such direct evi. creation. Rogers' inventive efforts in pos. dence of copying unavailable, the district ing the group for the photograph, taking court's decision could be upheld in this case the picture, and printing "Puppies" suffices on the basis that defendant Koons' access 60 meet the original work of art criteria. to the copyrighted work is conceded, and Thus, in terms of his unique expression of the accused work is so substantially similar che subject matter captured in the photo to the copyrighted work that reasonable graph. plainuff has established valid own. jurors could not differ on this issue. See ership of a copyright in an original work of Warner Brochers, Inc. American

Broadcasting Cos., Inc., 654 F.2d 204, 207

(20 Cir. 1981). Il l'nauthorized Copying by Defendant

Substantial similarity does not require lo Plainuift next must demonstrate literally identical copying of every detail. that defendant Koons copied his protected See 3 Simmer. § 13.03(A). See also work without authorization. The district Complone Company Ltd. v. Rayes Corp.. count granted summary judgment to Rog: 251 F.2d 487, 488 (2d Cir. 1958). Such simers on this issue, finding Koons' sculpture ilanity is determined by the ordinary ob“Sinng of Puppies" an unauthorized copy server test: the inquiry is "whether an of Rogers' photograph. Summary judg. average lay observer would recognize the ment may be an appropriate remedy in alleged copy as having been appropriated copyright infringement suits. See, e.g., Pe. from the copyrighted work." Ideal Toy ter Pan Fabrics, Inc. Ľ. Dan River Mills, Corp. r. Fab-Lu Lld.. 360 F.2d 1021, 1022 Inc.. 295 F.Supp. 1366. 1369 (S.D.N.Y.). (20 Cir. 1966). Or, stated another way. afd. 115 F.2d 1007 (2d Cir. 1969). Yet, whether "the ordinary observer, unless he such relief will be denied when the question set out to detect the disparities, would be of substantial similarity is one on which disposed to overlook them, and regard their reasonable minds could differ. See, e.g.. aesthetic appeal as the same." Peter Pan

an.

960 FEDERAL REPORTER, 20 SERIES

Fabrics, Inc. v. Martin Weiner Corp., 274 exceed those that are similar and those F.2d 487, 489 (2d Cir.1960). Thus, Koons' similar are—when compared to the original allegation that a trial judge uneducated in work-of small import quantitatively or art is not an appropriate decision-maker qualitatively that a finding of no infringe misses the mark; the decision-maker, ment is appropriate. See 3 Nimmer § 13.whether it be a judge or a jury, need not 03(BI11a). This is not the case here. have any special skills other than to be a Koons' additions, such as the flowers in the reasonable and average lay person. hair of the couple and the bulbous noses of (6) We recognize that ideas, concepts,

the puppies, are insufficient to raise a genand the like found in the common domain

uine issue of material fact with regard to are the inheritance of everyone. What is

copying in light of the overwhelming sim. protected is the original or unique way that

ilarity to the protected expression of the an author expresses those ideas, concepts,

original work. principles or processes. Hence, in looking Because of Koons' extensive use of the at these two works of art to determine same expression of the idea that Rogers' whether they are substantially similar, fo- created, it was properly held that he "copcus must be on the similarity of the expres. ied" the protected features of the original. sion of an idea or fact, not on the similarity No genuine issue of material fact exists of the facts, ideas or concepts themselves. with respect to this finding; “String of See Durham Industries, Inc. v. Tomy Puppies" was. copied from the photograph Corp., 630 F.2d 905, 912 (2d Cir.1980). It is "Puppies" based either on the direct evinot therefore the idea of a couple with dence of copying or on proof of access and eight small puppies seated on a bench that substantial similarity. In light of this sumis protected, but rather Roger's expression mary judgment was properly granted on of this idea-as caught in the placement, in this issue. the particular light, and in the expressions of the subjects-chat gives the photograph III The Fair Use Doctrine its charming and unique character, that is

Defendant Koons further defends his use to say, makes it original and copyrightable. of Rogers' work "Puppies" to craft “String

Thus, had appellant simply used the idea of Puppies" under a claim of a privilege of presented by the photo, there would not "fair use." This equitable doctrine permits have been infringing copying. But here other people to use copyrighted material koons used the identical expression of the without the owner's consent in a reasonidea that Rogers created: the composition, able manner for certain purposes. Codified the poses, and the expressions were all in § 107 of the 1976 Copyright Act, it is of incorporated into the sculpture to the ex. ancient lineage. Section 107 states that an lent that, under the ordinary observer lest, original work copied for purposes such as we conclude that no reasonable jury could criticism or comment may not constitute have differed on the issue of substancial infringement but instead may be a fair similarity. For this reason, the disinct use. The section provides an illustrative court properly held that Koons "copieda but not exhaustive list of factors for de the original.

termining when a use is "fair." These 17.8) Moreover, no copier may defend

factors include (1) the purpose and characthe act of plagiarism by pointing out how

ter of the use, (2) the nature of the copy. much of the copy he has not piraced. See

nighted work, (3) the amount and substan. Sheldon Metro-Golduyn Aclures

Lality of the work used, and (4) the effect Corp.. 81 F.2d 49. 56 (2d Cir.) (L. Hand. J.).

of the use on the market value of the cert denied, 298 U.S. 669, 56 S.CL 835, 80 onginal. 17 U.S.C. § 107. L.Ed. 1392 (1936). Thus, where substanual The fact that the test envisioned by the similarity is found, small changes here and Act is dependent on the circumstances of there made by the copier are unavailing. each case, see 3 Nimmer, § 13.05(A), might It is only where the points of dissimilarity suggest summary judgment is unavailable

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