Intellectual Property Rights

Rogers v. Koons

960 F.2d 301 (2d Cir. 1992)

Facts

Photographer Art Rogers created a black-and-white photograph titled Puppies.
It showed a seated couple holding eight German Shepherd puppies in a carefully arranged pose.
The photograph was used commercially on greeting cards.
Artist Jeff Koons obtained a copy of the card while preparing a series of artworks commenting on mass culture and consumer imagery.
Koons instructed artisans to create a three-dimensional sculpture closely based on the photograph.
The resulting sculpture, String of Puppies, reproduced the couple, puppies, pose and arrangement, while adding colour and certain exaggerated features.
Koons sold editions of the sculpture for substantial sums.
Rogers sued for copyright infringement.
Koons admitted access and copying but argued that the sculpture was a fair-use parody or satire.

Whether Koons copied protectable expression from Rogers’ photograph.
Whether changing the medium and adding stylistic alterations avoided substantial similarity.
Whether the sculpture qualified as fair-use parody.

Copyright in a photograph may protect creative choices concerning:
pose;
composition;
lighting;
arrangement;
timing and expression.
Infringement requires copying of protected expression and substantial similarity.
A parody may qualify as fair use where it uses the original to comment upon or ridicule that original.
A work does not become parody merely because the defendant claims to criticise society or popular culture generally.
Fair use considers:
purpose and character;
nature of the copyrighted work;
amount and substantiality taken;
effect upon the potential market.

Koons did not merely adopt the idea of people holding puppies.
The sculpture reproduced the central expressive arrangement of Rogers’ photograph:
the number and placement of puppies;
the couple’s posture;
their expressions;
the overall composition.
The three-dimensional form and bright colours did not conceal the close copying.
Koons’ instructions to his assistants showed an intention to reproduce the photograph accurately.
The Court rejected the argument that his status as a recognised artist changed the legal analysis.
Copyright applies equally to commercially celebrated artists and ordinary users.
Koons claimed that the sculpture criticised the banality and sentimentality of mass-produced imagery.
However, the work did not specifically target Rogers’ photograph.
The photograph was used as convenient raw material for a wider social commentary.
The Court distinguished parody from satire:
parody needs to evoke the original because it comments upon that work;
satire uses another’s work to comment upon something else and has a weaker justification for copying.
Koons copied the heart of the photograph and sold the sculptures commercially.
He could have expressed his criticism of consumer culture without reproducing Rogers’ exact composition.
The copying could also interfere with Rogers’ ability to license adaptations of the photograph.
The fair-use factors therefore weighed against Koons.

The Second Circuit held that String of Puppies infringed Rogers’ copyright.
The sculpture copied protected compositional expression, not merely an unprotected idea.
Koons’ broader social commentary did not make the work a parody of Rogers’ photograph.
His fair-use defence failed.
Use this case for: a defendant cannot justify close commercial copying as parody where the new work does not meaningfully comment upon the original work itself.