Second Circuit Upholds Finding of Fair Use in “Appropriation Art” Piece

The Second Circuit upheld a summary judgment finding of fair use by the U.S. District Court for the Southern District of New York in a case involving “appropriation art,” art that incorporates objects and images taken from popular media and consumer advertising. Plaintiff Andrea Blanch, a fashion photographer, sued Jeff Koons, a visual artist, as well as the art galleries that had commissioned his work, for unlicensed use of one of her photographs, “Silk Sandals by Gucci,” that had been published in Allure magazine. Koons’ piece, called “Niagara,” features several pairs of women’s legs dangling over confections, with a picture of Niagara Falls in the background. One of the pairs of legs was from Blanch’s photograph, which Koons admitted he had scanned in and modified by removing the background and changing the orientation and coloring.

The court based its fair use analysis on the four factors codified in 17 U.S.C. § 107 and the Supreme Court’s analysis in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The four factors, which are to be considered in an “open-ended and context-sensitive inquiry,” are: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational uses; (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.”

Considering the first factor in depth, the court found that the central question was whether the use of the original work was “transformative,” i.e. whether the new work did more than merely supersede the original or “exploit the creative virtues of the original work.” The court found that, by their own testimony, Blanch and Koons had ascribed very different purpose and meaning to the photograph. Koons’ goal was to use a fashion photograph from a glossy magazine to comment on society. Thus, his use was transformative, which favored a finding of fair use. In addition to transformative use, the first fair use factor also required considering the commercial nature of the use, the justification for copying, and bad faith. Relying on Campbell, the court found that, although Koons had made a substantial profit from his work, it could discount the commercial nature where the use was “transformative” and created value that benefited the broader public interest. The court also found Koons “had genuine creative rationale” in copying the photograph for its ubiquity and to lend authenticity to “Niagara.” Finally, the court cited dictum in Campbell to find that failure to seek permission to copy a work was not bad faith so long as the copying was otherwise fair use.

The court then proceeded to a briefer analysis of the remaining three fair use factors. Considering the second factor, the court noted two distinctions that are drawn among copyrighted works: creative versus factual works, and published versus unpublished works. The court disagreed with the district court that Blanch’s photograph was “banal rather than creative.” However, it again raised transformative use as making the second factor less useful in determining fair use. Instead, the court incorporated into the third factor the district court’s conclusion that Koons had only copied banal aspects of Blanch’s work, the legs themselves, and not her artistic choice of background and setting in having the feet resting on a man’s legs inside an airplane cabin. The third factor, the court found, went beyond justification to ask whether the copying was excessive in light of that justification. Here, the court found the amount and substantiality of Koons’ copying to be reasonable, which weighed in favor of fair use. The fourth factor was also resolved in Koons’ favor. The court found Blanch had not licensed any of her photographs for use, suggesting that there was no market for her works and no attempt by her to exploit them. In addition, Blanch’s own testimony established that Koons’ use neither harmed her career nor the value of any of her photographs. Thus, weighing all the factors, the court affirmed the district court’s finding of fair use.

The concurring opinion agreed with the majority’s overall findings and emphasized in particular the transformative nature of Koons’ use and the complete absence of commercial harm to the plaintiff. However, it found the majority’s opinion overly broad in two places. First, it disagreed with the majority’s discounting of the new work’s commercial nature, especially since commercial nature was explicitly mentioned in the statute, unlike transformative use. A better way to dispose of the issue was by finding that Blanch’s photograph was only a small part of what made Koons’ work commercially valuable. Second, the concurrence found the majority’s reliance on dictum in Campbell about seeking permission to be unnecessary. Again, the issue could have been resolved in a more fact-specific manner by finding that the considerations in favor of fair use outweighed any potential bad faith.

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