Welcome to the Left Brain:
Words and writings related to art generally or mosaics specifically.
June 2007: Copyright Law
"From the infancy of copyright protection, some opportunity for fair use of
copyrighted materials has been thought necessary to fulfill copyright’s very
purpose, 'To promote the Progress of Science and useful Arts.'"
- Blanch v. Koons, The Solomon R. Guggenheim Foundation and Deutsche Bank AG,
467 F.3d 244 (2006).
Copyright And The Recent Blanch v. Koons Case:
In October 2006, the United States Court of Appeals for the Second Circuit (the
Second Circuit includes Connecticut, New York and Vermont) came down with a
decision regarding the use of another’s creative work in a collage painting;
interesting to me because some mosaic work takes the form of collage. In this
case, artist Jeff Koons scanned Andrea Blanch’s photo from a fashion magazine,
and used elements of the photograph in his own collage painting.
The court held that Koons and the other defendants were not liable for
copyright infringement because Koons’s incorporation of the photograph in the
collage painting constituted fair use.
ArtNews did a good overview of the case. Click here to download Eileen
Kinsella's article, published in ArtNews, February 2007. (Reprinted with
permission from E. Kinsella and ArtNews.)
For more info, here is the full opinion from the United States Court of Appeals
for the Second Circuit.
Fair Use In Copyright:
The courts look at four factors in determining fair use of copyrighted
material. I provide them only briefly here and within the limited context of
the Blanch v. Koons case:
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.
Blanch v Koons, 467 F.3d at 250 (citing 17 U.S.C. § 107).
The Fair Use Factors Applied In Blanch v. Koons:
As to those factors (and here again, I am paraphrasing-
see the court’s opinion for full analysis and detail), the court found:
1) Purpose and Character of the Use: The court found that Koons’s use was
"transformative" of the original work. Blanch's photograph was a fashion
photograph created for a "lifestyles" magazine. Koons used the image in a
collage painting in which he intended to "comment on the ways in which some of
our most basic appetites - - for food, play, and sex - - are mediated by
popular images." Id. at 247. Koons used Blanch's image in his painting to
comment "on the social and aesthetic consequences of mass media." His purpose
in using Blanch's photograph was "sharply different" than Blanch's goals in
creating the photograph. The court stated "When, as here, the copyrighted work
is used as 'raw material,' in the furtherance of distinct creative or
communicative objectives, the use is transformative." Id. at 253.
It is important to note that the court does not find the use was
"transformative" merely because Blanch's work was a photograph and Koons's was
a painting. "We have declined to find a transformative use when the defendant
has done no more than find a new way to exploit the creative virtues of the
original work." Id. at 252.
As part of the "purpose and character of use" analysis, the court also looks at
whether the use is for a non-profit education purpose or of a commercial
nature. Although Koons made substantial profit from the sale of the art, this
did not weigh heavily against Koons, because the economic gains were not to the
exclusion of public benefit. The court stated that public exhibition of art has
value benefiting the broader public interest.
Furthermore, the court found that Koons had a "genuine creative rationale for
borrowing Blanch's image, rather than using it merely 'to get attention or to
avoid the drudgery in working up something fresh." Id. at 255. Finally, the
court did not find any bad faith on Koons's part in the use of Blanch's image.
The failure to seek permission for copying, in itself, does not constitute bad
faith. Id. at 256.
2) Nature of the Copyrighted Work: The court found that Blanch's photograph was
a creative work and that it was published. However, the courts found that this
factor deserved only limited weight because Koons' use of the photograph was
"transformative," as discussed above.
3) Amount and Substantiality of the Portion Used: The court found that Koons's
copying of the photograph "was indeed reasonable when measured in light of his
purpose, to convey the 'fact' of the photograph to viewers of the painting, . .
. , and in light of the quantity, quality, and importance of the material
used." Id. at 257. Koons extracted only a portion, an image, from the entire
photograph. Many of Blanch's key creative decisions (per her own testimony)
were in the background, and the placement of that image within the background.
These creative elements were not used by Koons. Koons lifted the image from its
background. The court found his copying was reasonable in relation to its
purpose.
4) Market Effects: The court found that Koons's use of the copyrighted image
had "no deleterious effect 'upon the potential market for or value of the
copyrighted work.'" Id. at 258. Blanch testified that she had not published or
licensed the photo prior to it appearing in the magazine, that she had not
licensed any of her photographs for use in art, and the court found that "Koons's use of her
photograph did not cause any harm to her career or upset any plans she had" for
that photograph. The value of the photograph did not decrease as a result of
Koons's use of it. Id. at 258.
More about the parties to the case:
Q. Who is Andrea Blanch?
A. Andrea Blanch has been a professional photographer for over 20 years. Her
photographs have been published in Details, G.Q., Vogue, and Allure, as well as
used in advertisements. She is also the author of the book, "Italian Men: Love
& Sex." The photograph at issue in this case appeared in Allure. See her work
and latest project at www.andreablanch.com.
Q. Who is Jeff Koons?
A. Jeff Koons is a visual artist, check out his work at www.jeffkoons.com.
(I’ve had a bit of trouble accessing his website, if you have the same luck,
try him on Wikipedia). This was not the first time Koons was sued for using
copyrighted material. In Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), the court
found that Koons's use of copyrighted images infringed on the right of the
copyright holders and was not fair use under copyright law.
Q. Why were The Solomon R. Guggenheim Foundation and Deutsche Bank AG defendants in
this lawsuit?
A. The Guggenheim Foundation and Deutsche Bank jointly established a
museum/exhibition space on the ground floor of the Deutsche Bank building in
Berlin. The joint collaboration is called "Deutsche Guggenheim Berlin." Deutsche
Guggenheim Berlin hosts art exhibitions, many of which are commissioned. The
Guggenheim Foundation curates and advises as to the artwork. Deutsche Bank
provides the cash and space. They are named in the suit because the Deutsche
Guggenheim Berlin commissioned the Koons artwork at issue in this case.
It is worth noting that Deutsche Bank has the largest art collection by a
single company in the world, more than 50,000 works
of art.
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