The district court held oral argument on November 26, 1990. In a December 10, 1990 decision, described more fully below, it found that Koons copied "Puppies" in "String of Puppies" and that this copying was not a fair use. It therefore found infringement, 751 F.Supp. 474. Rogers' motion for an infringing profits award was denied because the trial court believed there were disputed questions of fact concerning their computation. As to Sonnabend Gallery, the district court concluded on February 22, 1991 that the record showed Sonnabend's as well as Koons' liability for infringing profits. On March 27, 1991 it entered a permanent injunction enjoining Koons and Sonnabend Gallery from making, selling, lending or displaying any copies of, or derivative works based on, "Puppies," and, pursuant to 17 U.S.C. § 503, requiring defendants to deliver all infringing articles to plaintiff within 20 days, including the fourth or artist's copy of "String of Puppies."

When defendants failed to comply with the turn-over order. Rogers moved to hold defendant Koons in contempt. The proceedings on that motion revealed that nine days after the injunction was issued. Koons had loaned the fourth copy of "String of Puppies" to a museum in Germany and arranged for its shipment out of the United States. After a hearing on May 1991 the district court held Koons in contempt. dr. rected him to do whatever was necessary to effect the sculpture's return from Germany, and imposed a daily fine for contin· ued non-compliance to commence eight days later.

On May 28, 1991 we denied Koons mo tion to stay the injunction and the contempt penalty pending appeal, but delayed the commencement of the daily fine until June 7. 1991. From the finding of copyright infringement, the granung of a permanent injunction, and the turn-over order appellants Koons and Sonnabend appeal Rog ers cross-appeals from the denial of an award prior to trial for infringing profits. We affirm.

I

DISCUSSION

Ownership of Copyright in an Original
Work of Art

One of the powers given Congress under Art. I, § 8 of the United States Constitution is: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries." Madison noted that "[T]he utility of this power will scarcely be questioned." The Federalist No. 43 (Madison) at 279. He further observed that copyright for authors was their right under common law. Id; see 2 Blackstone, Commentaries on the Laws of England 407 (Univ. of Chicago ed. 1979). As a result, Congress enacted a copyright law. 17 U.S.C. § 101 et seq. (1976), under which the instant litigation was instituted.

[1] To establish an infringement of a copyright, a plaintiff must show both ownership of a copyright and that defendant copied the protected material without authorization. See Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). The Copyright Act makes a certificate of registration from the U.S. Register of Copyrights prima facie evidence of the valid ownership of a copyright, see 17 US.C. § 410(c), though that presumption of ownership may be rebutted, see Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F 2d 189. 192 (2d Cir.1985). Protection under the copyright statute extends to pictorial works. 17 U.S.C. § 102(a)(5). For more than a century photographs have been held to be copyrightable "writings" under Article 1. § of the Constitution. Burrou Giles Lithographic Co. v. Sarony, 111 U.S. 53. 4 S Ct. 279, 28 L.Ed. 349 (1884) (photo graph of Oscar Wilde an original work of

art)

[2] Of the several issues before us, the first concerns the originality of "Puppies." Defendants do not challenge plaintiff's ownership of a valid copyright, but assert instead that the portion of Rogers' work allegedly infringed was not an original work of authorship protected under the

1976 Copyright Act. Since the law protects authors' exclusive rights to their works, the cornerstone of that law is that the work protected must be original. See Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,

U.S., 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358 (1991). Thus, that a whole work is copyrighted does not mean that every element of it is copyrighted: copyright protection extends only to those components of the work that are original to the creator. Id. 111 S.Ct. at 1289. But the quantity of originality that need be shown is modest-only a dash of it will do. Id. at 1287; 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 1.08[C]1] (1991) (Nimmer).

[3] Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved. See Burrow Giles, 111 U.S. at 60, 4 S.Ct. at 282. 1 Nimmer, § 2.08[E]1]. To the extent that these factors are involved, "Puppies" is the product of plaintiff's artistic creation. Rogers' inventive efforts in posing the group for the photograph, taking the picture, and printing "Puppies" suffices to meet the original work of art criteria. Thus, in terms of his unique expression of the subject matter captured in the photograph, plaintiff has established valid ownership of a copyright in an original work of

art.

II Unauthorized Copying by Defendant

[4] Plaintiff next must demonstrate that defendant Koons copied his protected work without authorization. The district court granted summary judgment to Rog. ers on this issue, finding Koons' sculpture "String of Puppies" an unauthorized copy of Rogers' photograph. Summary judg. ment may be an appropriate remedy in copyright infringement suits. See, e.g., Peter Pan Fabrics, Inc. v. Dan River Mills. Inc.. 295 F.Supp. 1366, 1369 (S.D.N.Y.). aff d. 415 F.2d 1007 (2d Cir.1969). Yet, such relief will be denied when the question of substantial similarity is one on which reasonable minds could differ. See, e.g..

Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983).

Here, the trial court found original elements of creative expression in the copyrighted work were copied and that the copying was so blatantly apparent as not to require a trial. We agree that no reasonable juror could find that copying did not occur in this case. First, this case presents the rare scenario where there is direct evidence of copying. Koons admittedly gave a copy of the photograph to the Italian artisans with the explicit instruction that the work be copied. Moreover, the importance of copying the very details of the photograph that embodied plaintiff's original contribution-the poses, the shading. the expressions-was stressed by Koons throughout the creation of the sculpture. His instructions invariably implored that the creation must be designed "as per photo." This undisputed direct evidence of copying is sufficient to support the district court's granting of summary judgment.

[5] Further, even were such direct evidence of copying unavailable, the district court's decision could be upheld in this case on the basis that defendant Koons' access to the copyrighted work is conceded, and the accused work is so substantially similar to the copyrighted work that reasonable jurors could not differ on this issue. See Warner Brothers, Inc. American Broadcasting Cos., Inc., 654 F.2d 204, 207 (2d Cir.1981).

V.

Substantial similarity does not require literally identical copying of every detail. See 3 Nimmer. § 13.03[A]. See also Comptone Company Ltd. v. Rayez Corp.. 251 F.2d 487, 488 (2d Cir.1958). Such similarity is determined by the ordinary observer test: the inquiry is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Ideal Toy Corp. r. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966). Or, stated another way, whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan

Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). Thus, Koons' allegation that a trial judge uneducated in art is not an appropriate decision-maker misses the mark; the decision-maker, whether it be a judge or a jury, need not have any special skills other than to be a reasonable and average lay person.

[6] We recognize that ideas, concepts, and the like found in the common domain are the inheritance of everyone. What is protected is the original or unique way that an author expresses those ideas, concepts, principles or processes. Hence, in looking at these two works of art to determine whether they are substantially similar, focus must be on the similarity of the expres sion of an idea or fact, not on the similarity of the facts, ideas or concepts themselves. See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 912 (2d Cir.1980). It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger's expression of this idea-as caught in the placement, in the particular light, and in the expressions of the subjects—that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.

Thus, had appellant simply used the idea presented by the photo, there would not have been infringing copying. But here Koons used the identical expression of the idea that Rogers created; the composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the ordinary observer test, we conclude that no reasonable jury could have differed on the issue of substantial similarity. For this reason, the district court properly held that Koons "copied" the original.

[7,8] Moreover, no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated. See Sheldon 2'. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.) (L. Hand, J.). cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). Thus, where substantial similarity is found, small changes here and there made by the copier are unavailing. It is only where the points of dissimilarity

exceed those that are similar and those similar are when compared to the original work-of small import quantitatively or qualitatively that a finding of no infringement is appropriate. See 3 Nimmer § 13.03[B]1[a]. This is not the case here. Koons' additions, such as the flowers in the hair of the couple and the bulbous noses of the puppies, are insufficient to raise a genuine issue of material fact with regard to copying in light of the overwhelming similarity to the protected expression of the original work.

Because of Koons' extensive use of the same expression of the idea that Rogers' created, it was properly held that he "copied" the protected features of the original. No genuine issue of material fact exists with respect to this finding; "String of Puppies" was. copied from the photograph "Puppies" based either on the direct evidence of copying or on proof of access and substantial similarity. In light of this summary judgment was properly granted on this issue.

III The Fair Use Doctrine

Defendant Koons further defends his use of Rogers' work "Puppies" to craft "String of Puppies" under a claim of a privilege of "fair use." This equitable doctrine permits other people to use copyrighted material without the owner's consent in a reasonable manner for certain purposes. Codified in § 107 of the 1976 Copyright Act, it is of ancient lineage. Section 107 states that an original work copied for purposes such as criticism or comment may not constitute infringement, but instead may be a fair use. The section provides an illustrativebut not exhaustive-list of factors for de termining when a use is "fair." These factors include (1) the purpose and character of the use, (2) the nature of the copy. righted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market value of the original. 17 U.S.C. § 107.

The fact that the test envisioned by the Act is dependent on the circumstances of each case, see 3 Nimmer, § 13.05[A], might suggest summary judgment is unavailable

See

when fair use is the issue, but such relief may be granted when appropriate. e.g., Stewart v. Abend, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (summary judgment granted upon finding of no fair use). The trial court found no genuine issues of fact present regarding the fair use exception and granted summary judg. ment to plaintiff on this issue also. We proceed therefore to analyze the fair use factors in the circumstances of the case at hand. Our examination of these factors leads us to conclude that the district court properly granted summary judgment in favor of plaintiff.

1. Purpose and Character of the Use The first factor, purpose and character of the use. asks whether the original was copied in good faith to benefit the public or primarily for the commercial interests of the infringer. See MCA, Inc. r. Wilson, 677 F.2d 180, 182 (2d Cir.1981). Knowing exploitation of a copyrighted work for personal gain militates against a finding of fair use. And-because it is an equitable doctrine-wrongful denial of exploitative conduct towards the work of another may bar an otherwise legitimate fair use claim. See 3 Nimmer. § 13.05[A[1]. Relevant to this issue is Koons' conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use.

[9] The Supreme Court has held that copies made for commercial or profit-mak. ing purposes are presumptively unfair. See Sony Corp. of America v. Universal City Studios. Inc., 464 U.S. 417, 449, 104 S.Ct. 774, 792, 78 L.Ed.2d 574 (1984). The Court explained in a subsequent case that the "crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyright. ed material without paying the customary price." Harper & Row. Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). We have stated that, though it is a signifi

cant factor, whether the profit element of the fair use calculus affects the ultimate determination of whether there is a fair use depends on the totality of the factors considered; it is not itself controlling. See Maxtone–Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). Thus, while we note that Koons' substantial profit from his intentionally exploitive use of Rogers' work also militates against the finding of fair use, we turn next to consider his contention that the primary purpose of the use was for social

comment.

Parody or Satire as Fair Use: The Act expressly provides that comment on or criticism of a copyrighted work may be a valid use under the fair use doctrine. We must analyze therefore whether "String of Puppies" is properly considered a comment on or criticism of the photograph "Puppies." Koons argues that his sculpture is a satire or parody of society at large. He insists that "String of Puppies" is a fair social criticism and asserts to support that proposition that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. These themes, Koons states, draw upon the artistic movements of Cubism and Dadaism, with particular influence attributed to Marcel Duchamp, who in 1913 became the first to incorporate manufactured objects (readymades) into a work of art, directly influencing Koons' work and the work of other contemporary American artists. We accept this definition of the objective of this group of American

artists.

To analyze Koons' parody defense, we must first define it. Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression

of the original. Under our cases parody and satire are valued forms of criticism, encouraged because this sort of criticism itself fosters the creativity protected by the copyright law. See Warner Bros., Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231, 242 (2d Cir.1983). We have consistently held that a parody entitles its creator under the fair use doctrine to more extensive use of the copied work than is ordinarily allowed under the substantial similarity test. See Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 253 (2d Cir.1980) (per curiam).

[10] Hence, it must first be determined whether "String of Puppies" is a parody of Rogers' work for purposes of the fair use doctrine. We agree with the district court that it is not. It is the rule in this Circuit

that though the satire need not be only of the copied work and may, as appellants urge of "String of Puppies," also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work. See MCA. Inc. r. Wilson. 677 F.2d at 185; 3 Nimmer. § 13.05[C] n. 60.9.

[11] We think this is a necessary rule, as were it otherwise there would be no real limitation on the copier's use of another's copyrighted work to make a statement on some aspect of society at large. If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use-without insuring public awareness of the original workthere would be no practicable boundary to the fair use defense. Koons' claim that his infringement of Rogers' work is fair use solely because he is acting within an artistic tradition of commenting upon the com. monplace thus cannot be accepted. The rule's function is to insure that credit is given where credit is due. By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist. This awareness may come from the fact that the

copied work is publicly known or because its existence is in some manner acknowl edged by the parodist in connection with the parody. Of course, while our view of this matter does not necessarily prevent Koons' expression, although it may, it does recognize that any such exploitation must at least entail "paying the customary price." Harper & Row Publishers, Inc., 471 U.S. at 562, 105 S.Ct. at 2231.

The problem in the instant case is that even given that "String of Puppies" is a satirical critique of our materialistic socie ty, it is difficult to discern any parody of the photograph "Puppies" itself. We conclude therefore that this first factor of the fair use doctrine cuts against a finding of fair use. The circumstances of this case indicate that Koons' copying of the photograph "Puppies" was done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work.

2. Nature of the Copyrighted Work

[12] The next fair use factor asks what is the nature of the work that has been copied. Where the original work is factual rather than fictional the scope of fair use is broader. See New Era Publications, Int'l. r. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.), cert. denied, U.S. 111 S.Ct. 297, 112 L.Ed.2d 251 (1990). Whether the original is creative, imaginative, or represents an investment of time in anticipation of a financial return also should be considered. MCA, Inc. v. Wilson. 677 F.2d at 182. Here "Puppies" was a published work of art. As an original expression it has more in common with fiction than with works based on facts, such as, for example, biographies or telephone directories. Since "Puppies" was creative and imaginative and Rogers, who makes his living as a photographer, hopes to gain a financial return for his efforts with this photograph, this factor militates against a finding of fair use.