In the run-up to Jeff Koons's first New York museum solo, opening 
today at the Whitney Museum of American Art (through Oct. 19),
 A.i.A. offers some of our writers' observations on the artist from the archives. Here, art historian Martha Buskirk writes about a court ruling that Koons violated copyright law when he appropriated a photograph from a greeting card. The ruling, Buskirk argued, challenged a fundamental critical strategy of postmodernism. The article comes from our June 1992 issue.

In a decision rife with ominous implications for the practice of artistic appropriation, the U.S. Court of Appeals in New York City on April 2 denied Jeff Koons's attempt to overturn a lower court verdict of copyright infringement. Writing for the three-member appeals court panel, Judge Richard Cardamone castigated Koons for his "willful and egregious behavior" and upheld the decision of the U.S. District Court, which ruled last December that Koons had violated the copyright of California photographer Art Rogers. Koons admitted that he had used a greeting-card photo taken by Rogers of a man and woman holding eight German shepherd puppies as the model for his String of Puppies (1988), a life-size wooden sculpture of the same subject, but argued that his appropriation of the image was fair use since his sculpture was both a parody and a form of legitimate social criticism.1

The appropriation of imagery from mass media and other sources is, of course, a strategy central to postmodern art. Koons is only one of a number of artists who have responded to an increasingly image-saturated society by taking pictures directly from the media, advertising or elsewhere and repositioning them within their own work. Still, despite the widespread practice of appropriation by artists over the last three decades, its legal standing has remained uncertain. Several other artists have been sued for copyright infringement (most notably Andy Warhol, Robert Rauschenberg and David Salle), but all the previous cases were settled out of court.2 In the absence of other decisions, then, the Koons case will establish a key legal precedent, one which is even more significant for having been affirmed by the court of appeals.

In discussions of contemporary art, appropriation is generally understood as a method that uses recontextualization as a critical strategy. In theory, when an artist places a familiar image in a new context, the maneuver forces the viewer to reconsider how different contexts affect meaning and to understand that all meaning is socially constructed. In legal circles, however, the term "appropriation" carries strong negative connotations, signifying essentially theft or piracy. Attorney John Koegel, who represented Koons in both stages of the Rogers case, does not even like to use the word. In his appeals court brief, Koegel simply described Koons's practice as part of "a tradition of artists who incorporate mass produced or commonplace objects in their work so as to criticize those objects as symbols of the deterioration of modern culture."

Both courts rejected the idea that appropriation can, in itself, function as a legitimate form of criticism. From an artistic standpoint, this is particularly disturbing. Normally criticism, parody or other forms of commentary are protected by the fair-use provision of the copyright code. However, the type of criticism implicit in Koons's strategy of appropriation was too subtle or oblique for the courts to accept as criticism under existing copyright law. Judge Charles Haight's district court decision suggested a clear legal distinction between criticism and appropriation. Indeed, he implied that the terms are mutually exclusive when he wrote, "Koons' sculpture does not criticize or comment upon Rogers' photograph. It simply appropriates it."

Four factors guide a determination of fair use, and Judge Haight found all of them inapplicable to Koons's work. According to section 107 of the U.S. copyright code, "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." For the first factor, Haight determined that Koons's use of the photo was commercial in nature; for the second, he found that the creative nature of the photograph made fair use less likely; for the third he found that Koons had appropriated the entire photograph. For the fourth factor, which the Supreme Court has emphasized as the most important element of fair use, Haight determined that, even though Koons's sculpture was not competing in the same market as Rogers's photograph, he had affected a potential market for "art rendering" rights—a market described in affidavits submitted by Rogers's lawyer. The analogy cited by Haight was that of a commercial motion picture based on a copyrighted story—an infringement that would have hampered the sale of adaptation rights for the book. (continued below)

Judge Cardamone's appeals court decision not only affirmed the findings of the district court but went even further, drawing a sharp distinction between the parody or criticism of a specific image and a general criticism of modern society. According to Cardamone, "the copied work muse be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work." The appeals court also added a further suggestion that Koons has acted in bad faith, noting that before he gave the Rogers image to the Italian artisans who fabricated String of Puppies, he has torn off the back of the note card—the part containing Art Rogers's credit and copyright symbol.

An important aspect of the appeals court's ruling was an insistence that all authors receive due credit. "By requiring that the copied work be an object of parody," Cardamone wrote, "we separate expression, attributable to a different artist." Still, in dismissing the ides that Koons's work could function as an act of criticism, both courts demonstrated an insistence on unambiguous and pointed criticism, suggesting that works based on nuance, multivalence or ambiguity are less likely to win the day in the legal arena.

The refusal to consider Koons's work as a form of criticism was also clearly related to the courts' finding that the Rogers photograph and the Koons sculpture were "substantially similar." Oddly enough, neither court actually compared Koons's brightly colored, life-size sculpture to Rogers's card-size black-and-white photograph, relying instead on a comparison of photographs of each work. On this basis, both courts found Koons's sculpture to be "substantially similar" to Rogers' photograph according to the standard requirement that "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."3

The appeals court amplified this lay observer rule, taking umbrage at "Koons' allegation that a trial judge uneducated in art is not an appropriate decision-maker" and arguing that "the decision maker . . . need not have any special skills other than to be a reasonable and average lay person."

The courts were also not willing to accept Koegel's novel argument that Rogers's copyright protection covered only the specifically photographic elements of his work. Koegel argued that, in copying the arrangement of the figures in another medium, Koons had only copied the factual information in the photograph and not the expression of those facts (since facts cannot be protected). However, the district court found that "the manner in which Rogers arranged his subjects and carried out his photographer's art constitutes a protectible original act of expression"—an expression upon which Koons had relied when conceiving his sculpture. According to the district court decision, "In copyright law, the medium is not the message, and a change in medium does not preclude infringement."4

The appeals court agreed with the district court on this issue, finding that Koons had used the identical expression of Rogers's idea. And the appeals court, in dismissing the argument that Koons had made a number of creative alterations that would serve to differentiate between the photograph and the sculpture, stated that "no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated . . . where substantial similarity is found." Thus both decisions gave primary emphasis to the overall similarity in the arrangement of the human and animal figures while deemphasizing the dramatic differences between the two works in terms of medium, scale, color, detail and context in which they would be appreciated.

Finally, and significantly, the appeals court judges were not impressed by attempts to draw a distinction between a work produced in limited numbers as fine art and one intended for mass distribution. Koons's appeals-court brief had characterized the case against Koons as one concerning "the extent to which a mass distributor of a rather mundane photographic note card can prevent a highly regarded artist from creating a limited edition, original, provocative and critical work of art." This strategy may even have backfired, as the appeals court seemed actually offended by Koons's art-world persona. According to the appeals court decision, "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 prices of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism."

The appeals court did not rule on what damages Koons might owe Rogers, but returned that issue to the district court. Nevertheless, the appeals court did offer some guidelines. On the one hand, the appeals court suggested that an assessment of actual damages should be based on market value of the copyright at the time of the infringement and the degree to which its value has been decreased as a result. Furthermore, with respect to Koons's profits from String of Puppies, three copies of which originally sold for $125,000 each, the appeals court stated that Koons should be able to keep the portion of the profits based solely on his artistic stature: "The copyright law requires that Koons have the opportunity to establish those ‘elements of profit attributable to factors other than the copyrighted work.' These elements may include Koons' own notoriety and his related ability to command high prices for his work." At the same time, however, the appeals court left open the possibility of statutory damages, which can run to much higher amounts, a suggestion it based on Koons's "willful and egregious behavior."

The appeals court also affirmed the district court's ruling requiring Koons to turn over to Rogers the only unsold copy of String of Puppies (the fourth copy, an artist's proof) and upheld the lower court's finding Koons in contempt for not doing so. This turn-over was part of a draconian permanent injunction issued by the district court on Mar. 27, 1991, that enjoined both Koons and his codefendant, Sonnabend Gallery, from "making, selling, lending or displaying any copies of, or derivative works based on Puppies [Rogers's photo] and . . . requiring defendants to deliver all infringing articles to plaintiff within 20 days." Rather than turn over that sculpture immediately, however, Koons followed through on an agreement to lend this fourth copy to a Berlin museum, where he has it shipped nine days after the court injunction—an action that led the court to find Koons in contempt.5

As this article goes to press, Koegel has indicated that Koons is planning to file a motion for a rehearing of the Rogers case at the appeals court level. Koons himself has also said that he wants to pursue the case "all the way to the United States Supreme Court."

The Art Rogers case is only the first of four copyright infringement suits that have been brought against Koons. Two of the pending lawsuits are currently at early stages: one, brought by MGM, concerns Koons's use of the Pink Panther character in a 1988 sculpture of the same name; another, brought by photographer Barbara Campbell, concerns Koons's sculpture Ushering in Banality, which was also based on a greeting-card photograph. But a third case, for which arguments have already been heard in the district court, concerns an image of the dog Odie from the Garfield comic strop which Koons appropriated for his sculpture Wild Boy and Puppy (1988). In that work, Koons used a three-dimensional sculpture of the well-known cartoon character in conjunction with four other elements—a doll, a toy bumblebee, a basket and a two-tone base—to create a work that, according to the artist, comments on the theme of banality. If, in deciding the case, the judge rules that Koons's use of the familiar Odie also fails to function as a form of criticism or commentary, then the limitations on artists who wish to make works that respond to the contemporary would of existing, mass media images will be very confining indeed.