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Cite u Mo F20 301 (and Cir. 1972) when fair use is the issue, but such relief

cant factor, whether the profit element of may be granted when appropriate. See the fair use calculus affects the ultimate e.g. Stewart r. Abend 495 U.S. 207, 110 determination of whether there is a fair use S.Ct. 1750, 109 L.Ed.2d 184 (1990) (sum- depends on the totality of the factors conmary judgment granted upon finding of no sidered; it is not itself controlling. See fair use). The trial court found no genuine Maxtone-Graham v. Burtchaell, 803 F.2d issues of fact present regarding the fair 1253, 1262 (2d Cir. 1986), cert. denied, 481 use exception and granted summary judg. U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856

plaintiff on this issue also. We (1987). Thus, while we note that Koons' proceed therefore to analyze the fair use substantial profit from his intentionally exfactors in the circumstances of the case at ploitive use of Rogers' work also militates hand. Our examination of these factors against the finding of fair use, we turn leads us to conclude that the district court next to consider his contention that the properly granted summary judgment in fa. primary purpose of the use was for social

comment vor of plainuiff.

Parody or Satire as Fair Use: The Act 1. Purpose and Character of the l'se expressly provides that comment on or critThe first factor, purpose and character

icism of a copyrighted work may be a valid of the use, asks whether the original was

use under the fair use doctrine. We must copied in good faith to benefit the public or

analyze therefore whether “String of Pupprimarily for the commercial interests of pies” is properly considered a comment on the infringer. See MCA. Inc. . Wilson,

or criticism of the photograph “Puppies." 677 F.2d 180, 182 (2d Cir.1981). Knowing

Koons argues that his sculpture is a satire exploitation of a copyrighted work for per.

or parody of society at large. He insists sonal gain militates against a finding of

that "String of Puppies" is a fair social fair use. And-because it is an equitable

criticism and asserts to support that propo docenne-wrongful denial of exploitative

sition that he belongs to the school of conduct towards the work of another may

American artists who believe the mass pro

duction of commodities and media images bar an otherwise legitimate fair use claim.

has caused a deterioration in the quality of See 3 Simmer. § 13.05(All). Relevant to this issue is Koons' conduct, especially his

society, and this artistic tradition of which

he is a member proposes through incorpo acuon in tearing the copyright mark off of

raung these images into works of art to a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad

comment critically both on the incorporated

object and the political and economic sysfaith in defendant's use of plainuffs work.

tem that created it. These themes, Koons and milicales against a finding of fair use.

slales, draw upon the artistic movements 191 The Supreme Court has held that of Cubism and Dadaism, with particular copies made for commercial or profit-mak. influence attributed to Marcel Duchamp, ing purposes are presumptively unfur. who in 1913 became the first to incorporate See Sony Corp. of America 1. lnuersal manufactured objects (readymades) into a City Studios. Inc., 464 U.S. 417. 149, 104 work of ar directly influencing Koons' S.Ct. 174, 792, 78 L.Ed.2d 574 (1984). The

work and the work of other contemporary Court explained in a subsequent case that

Amencan arusts. We accept this definition the "crux of the profit/nonprofit disuncuon of the objecuve of this group of American is not whether the sole motive of the use is arusus. monetary gain but whether the user slands

To analyze Koons' parody defense, we co profit from exploitation of the copyrighe. must first define it. Parody or satire, as ed material without paying the customary we understand it, is when one artist, for price." Harper & Rou. Publishers, Inc. r. comic effect or social commentary, closely Vation Enterprises, 471 L'.S. 539. 562. 105 imilates the style of another artist and in S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). 30 doing creates a new art work that We have stated that, though it is a signifi- makes ridiculous the style and expression


of the original. Under our cases parody copied work is publicly known or because and satire are valued forms of criticism, its existence is in some manner acknowl. encouraged because this sort of criticism edged by the parodist in connection with itself fosters the creativity protected by the the parody. Of course, while our view of copyright law. See Warner Bros., Inc. v. this matter does not necessarily prevent American Broadcasting Cos., Inc., 720 Koons' expression, although it may, it does F.2d 231, 242 (2d Cir.1983). We have con- recognize that any such exploitation must sistently held that a parody entitles its

at least entail "paying the customary creator under the fair use doctrine to more price." Harper & Row Publishers. Inc.

, extensive use of the copied work than is

471 U.S. at 562, 105 S.Ct. at 2231. ordinarily allowed under the substantial

The problem in the instant case is that similarity test. See Elsmere Music, Inc. v. even given that "String of Puppies" is a National Broadcas Co., 623 F.2d 252, satirical critique of our materialist socie 253 (2d Cir.1980) (per curiam).

ty, it is difficult to discern any parody of (10) Hence, it must first be determined

the photograph “Puppies" itself. We conwhether "String of Puppies" is a parody of

clude therefore that this first factor of the Rogers' work for purposes of the fair use

fair use doctrine cuts against a finding of doctrine. We agree with the district court

fair use. The circumstances of this case that it is not. It is the rule in this Circuit

indicate that Koons' copying of the photo that though the satire need not be only of graph Puppies" was done in bad faith, the copied work and may, as appellanus primarily for profit-making motives, and

did not constitute a parody of the original urge of "String of Puppies," also be a

work. parody of modern society, the copied work must be, at least in part, an object of the

2. Vature of the Copyrighted Work parody. Otherwise there would be no need

(12) The next fair use factor asks what to conjure up the original work. See .MC.A. Inc. r. Wilson, 677 F.2d at 185; 3 Nimmer,

is the nature of the work that has been § 13.05[C] n. 60.9.

copied. Where the original work is factual

rather than fictional the scope of fair use is 1111 We think this is a necessary rule. broader. See New Era Publications, Int'l. as were it otherwise there would be no real

r. Carol Publishing Group, 904 F.2d 152, limitation on the copier's use of another's 157 (2d Cir.), cert. denied, U.S. copyrighted work to make a statement on 111 S.CL 297, 112 L.Ed.2d 251 (1990). some aspect of society at large. If an

Whether the original is creative, imaginainfringement of copyrighlable expression live, or represents an investment of time in could be justified as fair use solely on the anuicipation of a financial return also basis of the infringer's claim to a higher or should be considered. VCA, Inc. . Wil. different arriscic use without insunng son. 677 F.2d at 182. Here “Puppies" was public awareness of the onginal work- a published work of art. As an original there would be no pracucable boundary lo expression it has more in common with the fair use defense. Koons' claim that hus ficuon than with works based on facts, infringement of Rogers' work is fair use such as. for example, biographies or rele solely because he is acung within an arus. phone directories. Since “Puppies" was cic tradition of commenung upon the com. creauve and imaginative and Rogers, who monplace thus cannot be accepted. The makes his living as a photographer, hopes rule's function is to insure that credit is lo gain a financial return for his efforts given where credit is due. By requinng with chis photograph, this factor militates that the copied work be an object of the agunst a finding of fair use. parody, we merely insist that the audience

3. be aware that underlying the parody there

Amount and Substantiality of is an original and separate expression, al.

Work L'sed tributable to a different arust Thus (13) Where the amount of copying exawareness may come from the fact that the ceeds permissible levels, summary judg.


Clue as MO F.2d \1 (2nd Cur. 1972) ment has been upheld. Walt Disney Pro- Nor does Sony Corp. of America, 464 ductions r. Air Pirates, 581 F.2d 751, 758 U.S. at 449-50, 104 S.Ct. at 792–93, bear (9th Cir. 1978), cert. denied, 439 U.S. 1132, the weight that appellants place on it for 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). To a the proposition that even 100 percent copy large degree, this factor involves the same ing does not preclude a fair use finding. analysis as that used when determining if Although correct as a general statement, it the copy is substantially similar to the orig. applied in Sony to a narrow set of circuminal. Sometimes wholesale copying may be stances. Sony's copying equipment (Betapermitted. while in other cases taking even max VCRs) was used by members of the a small percentage of the original work has public to record television programs—the been held unfair use. See Maxtone-Gra. copyright of which was owned by plainham. 803 F.2d at 1263. "(What is rele

uiffs. The question was whether Sony's vant is the amount and substantiality of selling of the copying equipment violated the copyrighted erpression that has been

plaintiffs' rights under the Copyright Act used, not the factual content of the male

The Supreme Court said "no" because nial in the copyrighted works." Salinger "ume-shifting" for those watching a tele r. Random House, Inc., 811 F.2d 90, 97 (20

vision program enlarges the viewing audiCir.) (emphasis in original), reh'g denied.

ence, and does not impair plaintiffs' com

mercial right in the value of the copyright 818 F.2d 252, cert. denied. 484 U.S. 890.

Hence, no basis existed under the Act upon 108 S.Ct. 213. 98 L.Ed.2d 177 (1987). It is

which plainuiffs could hold Sony liable for not fair use when more of the original is

selling VCR's to the general public. Id at copied than necessary. Even more critical

121. 104 S.Cl at 778. than the quantity is the qualitative degree of the copying: what gree of the essence

Those are not the facts found here. Inof the original is copied in relation to its

stead. Koons' copying of Rogers' work was whole. Id. at 98; see also ver Era Publi.

the essence of the photograph, and de cations Int'l., 904 F.2d at 159.

signedly done as the notes to the Italian

artisans conclusively reveal. Koons went Appellants claim that under a parody de well beyond the factual subject matter of fense their use of Rogers' work did not the photograph to incorporate the very ex. exceed the level permitted under the fau pression of the work created by Rogers. use doctrine. As discussed previously. This We find that no reasonable jury could conCircuit has traditionally afforded paroduses clude thai Koons did not exceed a permissisignificant leeway with respect to the ex. ble level of copying under the fair use cent and nature of their copying Sre Ei docenne smere. 623 F.2d at 253. n. 1: Berlin r EC Publications, Inc., 329 F.2d 511. 545 128 Entert of the l'se on the Market Val. Cir.), cert. denied, 379 L'.S. 822. HS S Cl 16. Nr or the Onginal 13 L.Ed.2d 33 (1964). Yet, even under such The founh factor looks at the effect of a defense there are limitauons on what the use on the market value of the original. consutures fair use. See MCA r Wilson. The Supreme Court in Stewart, 495 U.S. 67. F.2d at 185. Here. the essence of 10. :10 sie 1:50. 109 LEd.2d 184, stated Rogers' photograph was copied nearly in that the fourth factor "is the 'most imporloto. much more than would have been uns and indeed. ceninal fair use factor.' necessary even if the sculpture had herna Id a :10 S.CL at 1769 (quoting 3 parody of plaintiff's work. In short, it is Simmer 1 1305(All: see also Harper & not really the parody nay that appellanus Rou. 41: is at 566. 105 S.Ct. at 2233. are sailing under, but rather the nag of i'nder this factor o balance must be struck piracy. Moreover, because we have als berween the benefit gained by the copy. ready determined that "String of Puppies" nghe owner when the copying is found an is not a parody of Rogers' work, appellanus unfur use and the benefit gained by the cannot avail themselves of this heightened public when the use is held to be fair. The tolerance under a parody defense

less adverse impact on the owner, the less


public benefit need be shown to sustain ie adaptation is made of a book. Even non-commercial fair use. It is plain that though the movie may boost book sales, it where a use has no demonstrable impact on is an unfair use because of the effect on a copyright owners' potential market, the che potential sale of adaptation rights. 3 use need not be prohibited to protect the Nimmer, 13.05(B). The function of de artist's incentive to pursue his inventive mand for each original work of art is a skills. Yet where the use is intended for relevant facet in this factor's analysis; that commercial gain some meaningful likeli- is, fair use permits lyrics or music to be hood of future harm is presumed. See copied in a literary magazine, but where Sony Corp. of America, 464 L'.S. at 451, the same material is published in a song 104 S.Ct. at 793.

sheet magazine, purchased for playing and A critical inquiry under this factor then not simply for reading, it is an unfair use. is whether defendants Koons and Sonna. Id. bend planned to profit from their exploita.

Here there is simply nothing in the tion of “Puppies" without paying Rogers

record to support a view that Koons pro for their use of his photo that is, whether

duced "String of Puppies" for anything Koons' work is primarily commercial in na

other than sale as high-priced art. Hence, ture. We have already concluded that it is.

che likelihood of future harm to Rogers' In this case, of course, the copy was in a different medium than the original: one

photograph is presumed, and plaintiff's

market for his work has been prejudiced. was a three-dimensional piece of sculpture, and the other a two-dimensional black and while photo. But the owner of a copyright IV infringing Profits with respect to this ma ket-factor need

(14) The next issue concerns Rogers' only demonstrate that if the unauthorized use becomes "widespread" it would preju.

claim for infringing profits in the amount

of $367.000. L’nder 17 U.S.C. § 504(b) a dice his potential market for his work. See

copynght owner is entitled to recover actuid. Harper & Row, 471 L.S. at 568, 105

al damages suffered as a result of the S.Ct. at 2234. The reason for this rule relates to a central concern of copyright

infnngement as well as apportioned prof. law that unfair copying underculs demand

The secuion scales: "In establishing for the original work and, as an inevitable

the infnnger's profils, the copyright owner consequence, chills creation of such works.

is required to present proof only of the Hence the inquiry considers not only harm

infnnger's gross revenue, and the infringer to the market for the onginal photograph.

18 required to prove his or her deductible but also harm to the market for denvative

expenses and the elements of profit attribworks. It is obviously not implausible that

ulable to factors other than the copyrightanother artist, who would be willing to

rd work " Alumauvely, in place of actual purchase the rights from Rogers. would

damages and apportioned profits, a copy. want to produce a sculpture like Rogers'

night owner may elect to recover an award photo and, with Koons' work extant, such

of slaculori damages. See 17 U.S.C. market is reduced. . Similarly. defendants could take and sell photos of "Sunng of In Rogers cross-appeal he asserts, in Puppies." which would prejudice Rogers

response to defendants' argument that we potential market for the sale of the “Pup

lack appellar junsdicuon over this issue, pies" norecards, in addition to any other chal junsdiction «XLSLS on two independent denvative use he mighe plan.

hases He further contends that there are Further, in discussing this fourth factor. issues of face and that the matter the leading scholar in this area of the law shouid or remanded simply to enter an uses an example that closely parallels che award in his lavor Although we agree facts of the present case and demonstrates wich Rokers that junsdiction over this as. the irrelevance of copying in a different pect of the judgment appealed from exists, medium when analyzing this factor: a mov. we are unable to grant the award he seeks.


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Che u W F20 301 (2nd Ar. im The district court stated that deposition (“Where a defendant alters infringing maand documentary evidence regarding the terial to suit its own unique purposes, deductible expenses referred to in § 504(b) those alterations and the creativity behind are present in the record. We are satisfied them should be taken into account in appor that defendants have incurred deductible tioning the profits of the infringing expenses in some amount and that they work."); Abend v. MCA, Inc., 863 F.2d should have an opportunity to prove them 1465, 1478, affd sub nom. Stewart v. as an offset to plaintiff's evidence of in- Abend495 U.S. 207, 110 S.CŁ 1750, 109 fringing damages. Further, the amount of LEd.2d 184. (1990) (considering outstanding actual damages incurred by Rogers, as well performances and brilliant direction); as the proper apportionment of Koons'

ABKCO Music, Inc. v. Harrisongs Music, profits between Rogers and Koons, remain

508 F.Supp. 798, 801 (S.D.N.Y.1981), mod. to be determined on remand. With respectified. 722 F.2d 988 (2d Cir.1983) (considerto the calculation of actual damages, “the ing "international 'name'" of infringing re primary measure of recovery is the extent

cording artist). See also 3 Nimmer § 14.. to which the market value of the copyright: 03(C). To the extent that Koons is able to ed work at the time of the infringement

prove that the profits at issue derive solely has been injured or destroyed by the in

from his own position in the art world, he fringement." Fitzgerald Pub. Co., Inc. r.

should be allowed to retain them. Baylor Pub. Co., Inc., 807 F.2d 1110, 1118 (2d Cir.1986). While we leave the ascer

Finally, we note that Rogers remains at Lainment of damages to the district court,

liberty to elect statutory damages in lieu of

an award of actual damages and apporunder the circumstances of this case, we chink that a reasonable license fee for the

tioned profits. See 17 U.S.C. $ 50410). In use of "Puppies" best approximates the

fact, given Koons' wilful and egregious market injury sustained by Rogers as a

behavior, we think Rogers may be a good result of Koons' misappropriation. See

candidate for enhanced statutory damages Deltak. Inc. r. Adranced Systems, Inc.,

pursuant to 17 U.S.C. $ 504(0X2). See :67 F.2d 357. 360-61 (7th Cir.1985) (The Fitzgerald Pub. Co.. 807 F.2d at 1115. Of value of the infringer's use is a permissible

course, that determination remains for the

district court to make in the first instance. basis for estimating actual damages."); Sid & Marty Kroff Television Produc. The case must be remanded therefore for lions. Inc. 1. McDonald's Corp.. 562 F.2d the district court to determine the amount 1157, 1174 (9th Cir.1977) (same).

of the award, a matter which it had re On the subject of apportioning profits. served to itself prior to the institution of

this appeal. the copyright law requires that Koons have the opportunity to establish those "ele

V The Turn-Over Order ments of profit attributable to factors och. er than the copyrighted work." 17 L.S.C. (15) Finally, the turn-over order of the $ 5041b. These "elements" may include artist's copy is an equitable remedy issued Koons' own notoriety and his related ability under the broad powers vested in a trial lo command high prices for his work. See judge under 17 C.S.C. $ 503(b) (court may Sheldon 1. Metro-Golduyn Corp. 309 order destruction or other reasonable dispo U.S. 390. 407-09, 60 S.Ct. 681, 687-88. 84 siwon of infnnging copies). In this case, L.Ed. 825 (1940) (considering "the drawing after Judge Haight issued his turn-over power of the 'motion picture scars' .. the order. Koons arranged to ship the fourth or artistic conceptions ... and ... the expert arust's copy of "Suring of Puppies" from supervision and direction of the various the l’nited Slaces to Germany. We see no processes which made possible the compos. abuse of the district court's discretion in Ile result"): Frank Music Corp. r. Metro direcung turnover and, under the circumGolduyn-Mayer Inc., 886 F.2d 1545. 1549 stances, the contempt order for the direct 19th Cir. 1989), cert. denied, 194 C.S. 1017. violation of the turnover order was entire 110 S.Ct. 1321. 108 L.Ed.2d 496 (1990) ly proper.

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