Blanch v. Koons
| Decision Date | 26 October 2006 |
| Docket Number | Docket No. 05-6433-CV. |
| Citation | 467 F.3d 244 |
| Parties | Andrea BLANCH, Plaintiff-Appellant, v. Jeff KOONS, the Solomon R. Guggenheim Foundation, and Deutsche Bank AG, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
John B. Koegel, The Koegel Group, New York, NY, for Defendant-Appellee Jeff Koons.
Lawrence B. Friedman, Cleary Gottlieb Steen & Hamilton LLP (Inna Reznik, Hoon-Jung Kim, of counsel) New York, NY, for Defendant-Appellee The Solomon R. Guggenheim Foundation.
Carol A. Witschel, White & Case LLP (Steven Betensky, Stefan M. Mentzer, of counsel), New York, NY, for Defendant-Appellee Deutsche Bank AG.
Before: SACK and KATZMANN, Circuit Judges, and MURTHA, District Judge.* Judge KATZMANN concurs in a separate opinion
This appeal presents the question whether an artist's appropriation of a copyrighted image in a collage painting is, under the circumstances, protected "fair use" under the copyright law. See 17 U.S.C. § 107.
On commission from defendants Deutsche Bank AG, a German corporation ("Deutsche Bank"), and The Solomon R. Guggenheim Foundation, a New York not-for-profit corporation ("Guggenheim"), defendant Jeff Koons created a collage painting, initially for display in Berlin, Germany, in which he copied, but altered the appearance of, part of a copyrighted photograph taken by the plaintiff Andrea Blanch. After seeing the painting on subsequent display at Guggenheim's museum in New York City, Blanch brought this action for copyright infringement. The district court (Louis L. Stanton, Judge) granted summary judgment to the defendants on the ground that Koons's appropriation of Blanch's photograph was fair use. We affirm.
Jeff Koons is a visual artist. His work has been exhibited widely in museums and commercial galleries and has been the subject of much critical commentary. He is known for incorporating into his artwork objects and images taken from popular media and consumer advertising, a practice that has been referred to as "neo-Pop art" or (perhaps unfortunately in a legal context) "appropriation art."1 His sculptures and paintings often contain such easily recognizable objects as toys, celebrities, and popular cartoon figures.
Koons has been the subject of several previous lawsuits for copyright infringement. In the late 1980s, he created a series of sculptures for an exhibition entitled the "Banality Show" ("Banality"). In doing so, he commissioned large three-dimensional reproductions of images taken from such sources as commercial postcards and syndicated comic strips. Although many of the source images were copyrighted, Koons did not seek permission to use them. In separate cases based on three different sculptures from "Banality," this Court and two district courts concluded that Koons's use of the copyrighted images infringed on the rights of the copyright holders and did not constitute fair use under the copyright law. See Rogers v. Koons, 960 F.2d 301 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Campbell v. Koons, No. 91 Civ. 6055, 1993 WL 97381, 1993 U.S. Dist. LEXIS 3957 (S.D.N.Y. Apr. 1, 1993); United Feature Syndicate v. Koons, 817 F.Supp. 370 (S.D.N.Y.1993).
The present action arises in connection with a later series of Koons's work entitled "Easyfun-Ethereal." It was commissioned in 2000 by Deutsche Bank in collaboration with Guggenheim.
Deutsche Bank and Guggenheim have jointly established the "Deutsche Guggenheim Berlin," an art exhibition space housed in a Deutsche Bank building in Berlin, Germany. Under their collaboration agreement, Deutsche Bank provides space, underwrites exhibition expenses, and pays for the commission of new works of art. Guggenheim curates the exhibitions and advises as to which work should be commissioned. Pursuant to a separate agreement, Deutsche Bank donates a fifty percent interest in each commissioned work to Guggenheim.
To create the "Easyfun-Ethereal" paintings, Koons culled images from advertisements or his own photographs, scanned them into a computer, and digitally superimposed the scanned images against backgrounds of pastoral landscapes. He then printed color images of the resulting collages for his assistants to use as templates for applying paint to billboard-sized, 10' x 14' canvasses. The "Easyfun-Ethereal" paintings, seven in all, were exhibited at the Deutsche Guggenheim Berlin from October 2000 to January 2001.
One of the "Easyfun-Ethereal" paintings, "Niagara," is the subject of this action. Like the other paintings in the series, "Niagara" consists of fragmentary images collaged against the backdrop of a landscape. The painting depicts four pairs of women's feet and lower legs dangling prominently over images of confections — a large chocolate fudge brownie topped with ice cream, a tray of donuts, and a tray of apple danish pastries — with a grassy field and Niagara Falls in the background. The images of the legs are placed side by side, each pair pointing vertically downward and extending from the top of the painting approximately two-thirds of the way to the bottom. Together, the four pairs of legs occupy the entire horizontal expanse of the painting. A black-and-white reproduction of "Niagara" is included in the Appendix to this opinion.
In an affidavit submitted to the district court, Koons states that he was inspired to create "Niagara" by a billboard he saw in Rome, which depicted several sets of women's lower legs. By juxtaposing women's legs against a backdrop of food and landscape, he says, 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." Koons Aff., dated June 10, 2005, at ¶ 10. "By recontextualizing these fragments as I do, I try to compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media." Id.
Koons drew the images in "Niagara" from fashion magazines and advertisements. One of the pairs of legs in the painting was adapted from a photograph by the plaintiff Andrea Blanch, an accomplished professional fashion and portrait photographer. During her career of more than twenty years, Blanch has published her photographs in commercial magazines, including Details, G.O., Vogue, and Allure; in photography periodicals and collections; and in advertisements for clients selling products under such widely recognized names as Revlon, Universal Films, Johnny Walker, and Valentino. She is also the author of a book of photographs and interviews entitled Italian Men: Love & Sex.
The Blanch photograph used by Koons in "Niagara" appeared in the August 2000 issue of Allure magazine. Entitled "Silk Sandals by Gucci" ("`Silk Sandals'"), it depicts a woman's lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man's lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. Allure published "Silk Sandals" as part of a six-page feature on metallic cosmetics entitled "Gilt Trip." A black-and-white reproduction of the photograph is also in the Appendix.
Blanch photographed "Silk Sandals" at a "shoot" organized by Conde Nast Publications, Allure's publisher. According to Blanch's deposition testimony, Paul Cavaco, the creative director of Allure, suggested the model, sandals, and nail polish to be used in the photograph. Blanch participated in their selection and retained control over the camera, the film, the lighting, and the composition of the photographs. She testified that it was her idea to use an airplane interior as a backdrop and to place the female model's feet on the male model's lap. She explained that she wanted to "show some sort of erotic sense[;] ... to get ... more of a sexuality to the photographs." Blanch Dep., March 8, 2005, at 112-13.
While working on the "Easyfun-Ethereal" series, Koons saw "Silk Sandals" in Allure. According to Koons, "certain physical features of the legs [in the photograph] represented for me a particular type of woman frequently presented in advertising." He considered this typicality to further his purpose of commenting on the "commercial images ... in our consumer culture." Koons Aff. at ¶ 10.
Koons scanned the image of "Silk Sandals" into his computer and incorporated a version of the scanned image into "Niagara." He included in the painting only the legs and feet from the photograph, discarding the background of the airplane cabin and the man's lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of "Niagara" rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph's coloring. The legs from "Silk Sandals" are second from the left among the four pairs of legs that form the focal images of "Niagara." Koons did not seek permission from Blanch or anyone else before using the image.
Deutsche Bank paid Koons $2 million for the seven "Easyfun-Ethereal" paintings. Koons reports that his net compensation attributable to "Niagara" was $126,877. Deutsche Bank received gross revenues of approximately $100,000 from the exhibition of the "Easyfun-Ethereal" paintings at the Deutsche Guggenheim Berlin, a total that includes admission fees and catalogue and postcard sales. The record does not reflect Deutsche Bank's expenses for that exhibition other than the commission of the paintings.
The subsequent exhibition of the paintings at the Solomon R. Guggenheim Museum in New York sustained a net loss,...
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