United Feature Syndicate, Inc. v. Koons
| Decision Date | 24 March 1993 |
| Docket Number | No. 89 Civ. 8067 (PKL).,89 Civ. 8067 (PKL). |
| Citation | 817 F. Supp. 370 |
| Parties | UNITED FEATURE SYNDICATE, INC., Plaintiff, v. Jeff KOONS, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Walter, Conston, Alexander & Green, P.C. (Gregory F. Hauser, of counsel), New York City, Baker & Hostetler (Louis A. Colombo, John D. Parker, Michael K. Farrell, of counsel), Cleveland, OH, for plaintiff.
John B. Koegel, New York City, for defendant.
This is an action for copyright infringement, dilution, and unfair competition based upon defendant Jeff Koons' ("Koons") production of four identical sculptures entitled "Wild Boy and Puppy" which allegedly contain unauthorized copies of the Garfield comic strip character "Odie." Plaintiff United Feature Syndicate, Inc. ("UFS") has moved for partial summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, as to defendant Koons' liability on the copyright infringement claims. For the reasons stated below, the motion is granted in its entirety.
Plaintiff UFS owns all right, title and interest in the copyrights covering the Garfield comic strip, which focuses on the life of "Garfield the Cat" and his interaction with several other characters. The Garfield comic strip was created in 1978 by James R. Davis and, since that time, has become one of the most famous comic strips in the United States. The Garfield comic strip currently appears in over 2,000 newspapers in the United States and around the world. In addition to the comic strip, plaintiff also possesses approximately 400 licenses for products or uses of the various Garfield characters, including the television production of the Garfield animation programs.
By virtue of its ownership of the copyright interest covering the Garfield comic strip, UFS also owns the copyright in the various characters. Among the most prominent and well-known of the Garfield comic strip characters is the dog "Odie" which has been regularly featured in the comic strip, in both likeness and name, since the strip's inception. It is the alleged unauthorized use of the "Odie" character in one of defendant's sculptures which forms the basis of the instant action.
Defendant Koons is an accomplished visual artist whose primary activities are in the creation of sculptural works of art. Koons is part of a contemporary artistic movement which takes images from popular culture and "re-contextualizes" them in a work of art in an effort to convey a certain message or idea to the viewer. This movement is sometimes categorized as "Pop Art" with Andy Warhol's reproduction of multiple images of Campbell's soup cans being a widely recognized example of this artistic tradition.
In October, 1986, after a successful presentation of certain stainless steel sculptures at the Sonnabend Gallery in New York City, Koons began working on his next set of sculptural works of art which would further develop the thoughts and themes expressed in the October exhibition. During the remainder of 1986 and throughout 1987, Koons travelled throughout the world looking for exotic materials, such as porcelain, which could be used for his next exhibition at the Sonnabend Gallery and also choosing workshops that were skilled at crafting such materials. Koons ultimately decided to use three types of materials for his next set of works: mirrors, wood, and porcelain. During this same period, Koons also collected the popular images and ideas which he could transform into works of sculpture. According to Koons, he would accumulate images from popular culture by cutting out items that he read or by purchasing objects during the course of his travels and then, at some later point, would begin the process of "re-contextualizing" these images into sculptures.
Koons decided that the unifying theme of this upcoming exhibition would be "banality." The exhibition focused on popular attitudes toward objects and facts of everyday life which were commonplace and Koons referred to this exhibition as the "Banality Show." Koons did not physically make any of the sculptures for this Banality Show. Instead, Koons was the "producer" of the sculptures —that is, he thought of the ideas for the sculptures and made the decision as to the materials to be used, as well as the sculpture's form, shape, size, and color. While he had absolute control over the production of the sculptures, the sculptures were physically manufactured by artisans who made the sculptures to Koons' specifications. During 1988, Koons worked with the studios and artisans who were commissioned by him to produce 20 separate sculptural works for the Sonnabend exhibition. Koons commissioned the artisans to create three "editions," or copies, of each sculpture, as well as an "artist's proof" which is not offered for sale but rather is kept by Koons as documentation of his work. On November 19, 1988, the "Banality" exhibition opened at the Sonnabend Gallery.
One of the twenty sculptures produced by Koons for this exhibition is entitled "Wild Boy and Puppy" and is the subject of this lawsuit.1 UFS contends that the "Puppy" in the sculpture is an unauthorized copy of the "Odie" character from the Garfield comic strip. In his deposition, Koons admits that the "Puppy" in the sculpture is based on a picture of the "Odie" character. According to Koons, he designed the sculpture by cutting out a color picture of "Odie" (the "Puppy") and placing it next to a cut-out image of a stuffed doll (the "Wild Boy") to form a collage which was used as the design for the sculpture. Deposition of Jeff Koons, sworn to on July 2, 1990 ("Koons Deposition"), at 63-64, 66-67, 91-94, annexed as Exhibit B to the Affidavit of John D. Parker, Esq., in Support of Plaintiff's Motion for Partial Summary Judgment, sworn to on January 15, 1991 ("Parker Affidavit"); see also Exhibit H to the Parker Affidavit (collage of "Wild Boy and Puppy"). Koons was unable to recall with certainty where he obtained the image of "Odie" used in the collage, but stated that he obtained it from some media source, such as a postcard or magazine. Koons Deposition, at 67, 92. The image of the "Wild Boy" is based on a stuffed toy doll that Koons found in Europe. Affidavit of Jeff Koons, sworn to on February 8, 1991 ("Koons Affidavit"), at ¶ 19.
According to Koons, he instructed the artisan who physically constructed the sculpture to reproduce the pictures of "Odie" and the doll contained in the collage as closely as possible. Koons Deposition, at 93-94. Koons explained that he had the artisan copy the pictures as closely as possible so that he could maintain control over the end product. Id. Thus, the only deviation between the sculpture of the "Odie" character and the copyrighted picture of the "Odie" character used by Koons was the three-dimensional nature of the sculpture, as well as a technical change in the relative length of "Odie's" tongue which was made to give the sculpture additional structural stability. In addition, the sculpture of "Odie" was obviously larger than the picture of "Odie" contained in the collage, but the scale of the character, in relation to the other image (the "Wild Boy"), remained virtually the same. Id. at 93-94 and Exhibit H. At some later point, Koons instructed the artisan to add a third image, the butterfly-bee figure, to the sculpture. Id. at 62.
At Koons' direction, four identical porcelain sculptures of "Wild Boy and Puppy" were produced. Sonnabend Gallery displayed the "Wild Boy and Puppy" sculpture as part of the Banality Show which opened on November 19, 1988. Two of the four sculptures of the "Wild Boy and Puppy" were sold to collectors by Sonnabend Gallery for $125,000 each. The ownership of the third sculpture was retained by Ileana Sonnabend for her private collection. Koons owns the fourth copy of the sculpture which is referred to as the "artist's proof." The various sculptures displayed in the Banality Show attracted substantial media coverage, including a feature in People magazine, annexed as Exhibit G to the Parker Affidavit, which displayed a large picture of Koons surrounded by the three images contained in the "Wild Boy and Puppy" sculpture. Neither Koons nor Sonnabend Gallery sought UFS's permission to use "Odie" in the sculpture or informed UFS of their intended use of "Odie."
Plaintiffs filed the instant action on December 6, 1989, alleging several causes of action based upon the alleged unauthorized use of the "Odie" character in the "Wild Boy and Puppy" sculpture including: (1) unfair competition under the Lanham Act, 15 U.S.C. § 1051, et seq.; (2) copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101, et seq.; (3) dilution under Section 368-d of New York's General Business Law; and (4) common-law unfair competition under New York law. The complaint seeks both injunctive relief and monetary damages. Sonnabend Gallery was originally named as a defendant in this action along with Koons. However, Sonnabend Gallery and plaintiff subsequently reached a Settlement Agreement and, on January 19, 1993, the Court, by stipulation of the parties, ordered that the claims in the instant action as to Sonnabend Gallery be dismissed with prejudice. Thus, the only remaining defendant is Jeff Koons.
Plaintiff has moved for partial summary judgment against defendant Koons on the issue of liability with respect to the copyright claims, contained in Counts II and III, which allege that the manufacture and sale of these sculptures infringe upon UFS's copyrights in the comic strip character "Odie." Defendant Koons contends, inter alia, that the "Wild Boy and Puppy" sculpture is protected under the fair use doctrine as a parody and that there are disputed issues of material fact which preclude summary judgment in plaintiff's favor on the issue of liability.2
Rule 56(c) of the Federal Rules of Civil Procedure provides that...
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