In the April 1992 case of Art Rogers v. Jeff Koons, Koons infringed copyright in his work String of Puppies which was a three dimensional color copy of a photographic original of Rogers' that he found on a postcard in a tourist shop. The sources I have researched question the boundaries of art and when it is and is not fair use, and in which ways the guidelines can really have a great effect in shaping this gray area. Koons is sometimes referred to as an appropriation artist: an artist who quotes elements from other works and creates a new version of the original. In the case I choose to focus on he does not alter the change enough, it is arguably an exact copy of the original with minor changes. I use a later case in Koons' career - Blanch v. Koons - as a source to highlight what is fair use, and the development of our understanding of it. In my final paper I would like to use this as a comparison. Identity and Koons' call to parody are also central to the fair use argument and thus I have chosen some sources that discuss these important aspects, as a means to both strengthen and weaken Koons' argument (that his work is based on parody).

Koons won this case as the court argued that Koons' use of Blanch's work did not breach the fair use doctrine.  It is necessary to look at this later case in order to understand the court ruling of the earlier case: Rogers v. Koons.  By comparing the two cases we get a clearer idea of what fair use is and the complexities which are involved.  Moreover, the later case marks a more developed understanding, and that there is indeed change and progress within art law.

This article takes the 1992 case of Rogers vs. Koons, and, analyzes the effect it has had.  Fair Use more often than not puts the artist/author/lawyer/judge etc. in a gray area, wherein delineating the boundaries is very tricky.  It discusses the development of appropriation as an art form, and necessary guide lines that must be developed in order to understand and adhere to copyright laws.  Piracy is a huge point of controversy in the art world, as art is subjective and difficult to monitor.  The Rogers v. Koons should not be overlooked as anything less than a landmark in the history of art for bringing up some issues that are central to our everyday existence, especially in the western world where we are saturated by the mass media, mass culture and commercialism. 

This book expresses clearly why Koons defense lost on the account of parody as fair use.  It goes through the four factors of fair use and explains why it breaches the doctrine comparing String of Puppies directly with the original black and white photograph by Rogers, Puppies.  It clarifies first and foremost that the copied work is not a parody of the original, as no one would have any idea of the object, Puppies photograph that Koons is parodying.  Secondly, fair use is more applicable to factual than fictional work, and Roger's work is a fictional piece.  The third factor, the amount and substantiality used are certainly breached, because Koons work is an almost exact copy of the black and white photograph.  Fourthly, whether the copy would affect the market of the original also seemed to fail meeting fair use standards.

Most importantly it clarifies why String of Puppies is not parody, and it points out why Koons v. Rogers is such an important case in the discussion of parody and what is fair use.

Here, Chicago Law School lays out the problems and relationship between "copyright law, borrowed images, and appropriation art".  Appropriation art borrows images from the mass media and elsewhere and incorporates them in new ways into art.  The motive is to change the way we look at that object.  There are various problems to the theory including: "A constructs several identical sculptural works based on B's copyrighted photograph or comic book character." which applies directly to Koons, and his work, String of Puppies.  Apart from not being that transformed from the original, Koons' version of the photograph most likely did not take away from the financial market of the original, as the intent of this artistic work is entirely different - it is intended for display in a gallery, or in someone's home.  However, Koons argued that it was fair use on the grounds that he was making satirical comment on mass culture in society.  The court did not buy this defense, as his work did not apply to directly to the appropriated work.  This tag is useful in making us question what exactly constitutes appropriation art, and the relationships between the borrowed images and how they are used.  The fact that appropriation art is part of the history of art acknowledges it as a valid genre or term.  However, Koons it testing those boundaries to the point that he is criticized that he is making a mockery of art.  Appropriation art has other drawbacks in that it goes both ways in promoting new art but at the same time limiting it.  Artists are less likely to come up with their own original images.  The article also underlines that we cannot merely label something as 'art' and therefore expect it to be exempt from copyright.  This would leave judges in a extremely subjective and difficult position of deciding what is art.

This Blog compares the Koons v. Blanch case and the Koons v. Rogers case.   The latter he lost because the work was not transformative enough and therefore not fair use.  In the Koons v. Blanch case, Koons used part of Andrea Blanch's Silk Sandals by Gucci photo in his painting entitled Niagra.  It was considered fair use because he took only the legs, added a heel, inverted the orientation and added color, thus, transforming the original and giving it a new meaning and identity.  Moreover, it did not threaten to harm the market of the original artist.

The blogger points out that although in the Koons v. Blanch case, Koons was not breaching copyright, it is diffcult to take from a case and apply it elsewhere in deciding what is fair use, which is what deems it such a gray area.  The blog argues against fair use as "the real issue is that fair use doctrine is a red herring that we should just dump."  Who decides when something is transformed enough.  For example, had the orientation of the legs in Niagara been tilted to a slightly lesser degree, or had the heel not been added, perhaps this would not have been enough.  One can argue that in String of Puppies, Koons has changed the scale, color, medium etc.  But in this example it was not enough and Koons lost.  The question is, when is it enough? And who is at liberty to decide?

This article from Art Law department at Harvard explains that artists have certain rights within the creation of their works.  One-way is through appropriation art: the quoting of work from other artists.  Artists borrows elements from the original that may stay completely unchanged, however, the new work uses the original to create something new.  Appropriation art took place as far back as Raphael’s Judgment of Paris c.1515, which was since lost but one of the artist’s employees, Raimondi, made an etching of it, which proceeded to be copied over and over.  Three centuries later, Manet took part of this image and inserted it into his painting, Le Dejeuner Sur L’Herbe.  A century later, Picasso translated Manet’s work in a series of paintings.   Thus, artists’ have always relied on being inspired and influenced by earlier works.

The Roger v. Koons (1992) case, wherein Jeff Koons commissioned a sculpture of Art Roger's photograph postcard, and in so doing, violated Rogers’ copyright of his original work, is regarded as the primary modern day case of appropriation art.  Koons’ work copies the original exactly, although the puppies are painted a vivid blue, have bulbous noses, and the two figures are decorated with three flowers, which does not occur in the original.

Koons has been in a number of cases in which he has tried to argue for parody or satire, for example, in order to deem his work transformative enough from the original, and thus fair use.  Appropriation art is a major get-out-of-jail free card, that gives artists the ‘artistic license’ that is arguably essential in creating great works, as exemplified by the fact that the most well recognized artists have been doing this for centuries.

    Tim Westergren, founder and chief strategy officer of Pandora, spoke on behalf of the Digital Media Association (DiMa) at the hearing on “The Future of Radio.” His testimony first introduces Pandora and the Music Genome Project. He emphasizes that Pandora is unbiased in the song selection for its listeners. Through a completely democratic process, listeners can vote “thumbs up” or “thumbs down” if they like the song, and that respective song will gain or lose more exposure. Pandora plays songs from a wide range of artists with about 70% of the sound recordings belonging to artists not affiliated to major record labels. It equally reviews any CD that is delivered to them and selects songs solely based on their musical composition.
    Westergren’s statement focuses on the benefits of the internet radio technology. Internet radio offers more stations and diversity content than broadcast, satellite, and FM radio. Virtually any artist or song can be found on the internet. Westergren reports that in a study “Pandora listeners are three to five times more likely to have purchased music in the last 90 days than the average American.” He emphasizes that internet radio is the best way to promote artists and music.
    On the issue of royalty rates, Westergren highlights that internet radio has the smallest of all radio revenues yet it pays the highest royalties. The increased rates are not economically sustainable, and unless a new resolution is made with SoundExchange, Pandora and other internet radio companies will immediately shut down. Pandora and DiMa have supported the SaveNetRadio campaign, which has urged support for the Internet Radio Equality Act. Westergren provides words from listeners and musicians who are extremely grateful to internet radio. In his own words, Westergren states, “It is my hope, indeed the reason I started this company, that we are at the beginning of the development of a musicians’ middle class, as radio services like Pandora allow musicians to find a fan base and maintain a steady career making music, which is a real alternative to the major-label system that makes you an enormous star or leaves you unemployed.”
    Westergren’s statement is important for my paper, since my argument completely supports his ideas and beliefs. The internet radio is extremely beneficial to the public and I agree that it is the best way to promote an artist’s work. If the royalty rates are increased, this will put a halt to the promotion of cultural diversity. Although not all listeners end up purchasing CDs or songs, the word-of-mouth advertisement for performers is tremendous, this benefits them in the long run. Westergren’s ideas and beliefs are fair and justified. He is not completely against the payment of royalties, but he demands a fair standard to be used for the rate determination, which is what my paper will discuss.

    Section 801 of the Copyright Act determines the appointments and functions of the Copyright Royalty Judges. Section 801b is most important and determines the function of the Copyright Royalty Judges. The 801b standard of the Copyright Act is the standard that the Internet Radio Equality Act proposes. It is used for determining rates for satellite radio and digital cable radio. The 801b standard takes into account the relative value of the copyright work to the public, and it also considers a fair return to both the copyright owner and user. The judges must determine and adjust royalties with the following objectives:
1)    Maximize the availability of creative works to the public.
2)    Set a rate that gives the copyright owner a fair return for his/her work and allows the user a fair income given the economic conditions
3)    Reflect the relative contribution of the copyright owner and user with respect to creativity, technology, and the market.
4)    Minimize any disruptive impact on the industries involved.
     This source explains the standard for royalty rates that my paper will argue is a better model for both the copyright owners and users. The Copyright Royalty Judges implemented a willing buyer/willing seller standard, which Pandora and other webcasters believe is ineffective and unfair. The 801b standard was used before the new royalty board decision and has proven successful until now. This source is concise, but it contains essential information necessary for my paper to argue that the royalty ruling was based on an unfair and unequal standard.

    Matt Nathanson is a songwriter, performer, and recording artist. He is also the most played artist on Pandora.com. In his testimony at the hearing on “Music and Radio in the 21st Century: Assuring Fair Rates and Rules across Platforms,” Nathanson emphasizes the importance of internet music and internet radio. Before iTunes, Amazon, and other internet music sources were available, only a handful of artists succeeded. Nowadays, with internet radio stations, such as Pandora and Yahoo!, people are exposed to a variety of music and different genres. Nathanson relates how his own success was contributed by his exposure on internet radio. Internet radio has given independent artists and labels an opportunity to be heard by the public. Customers buy from a much broader group of artists thanks to internet music.
     Nathanson also discusses the financial concerns behind the royalty debate. “When a song I write is played on broadcast, satellite or Internet radio, they pay me an amount which is reasonably related to their revenue. Higher revenue stations pay a bit more; smaller stations and services pay a bit less. But when a song that I perform is played, broadcast radio pays me nothing; satellite radio pays me a reasonable royalty that when combined with other artist payments effectively equals 6% of its revenue; but Internet radio services pay me and other artists a per-song fee that is unrelated to the revenue of the service, which when combined with other artist payments effectively equals 30 or 40 or 70 percent of their revenue or more.” Nathanson argues that it is wrong for the smallest industry to be paying the highest royalty rates. He reports that internet radio is the most important way for independent artists to be heard. He concludes his testimony asking that the royalties changes be made fair for internet radio and demanding that the board keep in mind the future generation of artists.
     This source provides another perspective of the royalty rate issue for my paper. Nathanson's musical career and success demonstrate the tremendous benefit that internet radio has for the public. His testimony is important for my paper because it is supporting evidence that the copyright ruling is unfair. Nathanson, a musician who receives royalty payments, completely supports Pandora's fight against the increasing royalty rates. His testimony makes a strong case for my paper since he opposes SoundExchange's argument that performers need to be paid more on the basis of fairness.

     John Simson defended the new royalty rulings made by the Copyright Royalty Board in his testimony on "Music and Radio in the 21st Century: Assuring Fair Rates and Rules Across Platforms.” Simson is a former performer, artist manager, music attorney, and presently an executive director of SoundExchange. SoundExchange is the single receiving agent of royalties paid by webcasters. He supports the increasing rates on the basic principle that "the people who create music must be paid." He defends SoundExchange's concern over the business of webcasters but argues that revenues are predicted to increase over the future. SoundExchange currently represents about 31,000 artists and 3,500 labels. Simson emphasizes the hard work put into music creation, and he scorns at those who believe music should be free or those who devalue it. Simson argues that webcasters are contradicting the decisions by the Copyright Royalty Board solely based on their prospective financial gains. He strongly believes that the new rates are fair and that no further negotiations are required.
     Simson’s testimony is important to my paper because it explains the royalty decision from the opposing point of view. Simson directly works for the company receiving the royalties, and so he represents SoundExchange’s opinions. Although Simson argues that fair rates must be ensured for the sake of the musicians, SoundExchange is also benefitting from the increasing rates. This testimony is important to my paper in order to prove that SoundExchange is biased in its strong royalty support.

Jackson, Laura. Paul Simon: the Definitive Biography. London: Judy Piatkus Limited, 2002. 103-119.

Call#: ML420.S563 J33 2002

    In this wonderful biography of American musician Paul Simon, author Laura Jackson analyzes the artist's entire life and its influence on the music that he made. In the chapter entitled "Flying High", Jackson discusses The Graduate Soundtrack and its impact on the music scene of that time. The soundtrack was unbelievably successful for both the movie and the duo Simon and Garfunkel. As an album it was #1 in the U.S. and #3 in Great Britain. Also, Mrs. Robinson was the #1 single in the states. For four months the #1 album in the U.S. was either the soundtrack or Bookends, the group's following album. She notes that The Graduate was one of the first major movies to have a totally Rock and Roll soundtrack. The album Bookends was innovative in that it was one of the first to use multi-tracking vocals. Jackson notes that critics had always noticed Simon's affinity for writing introspectively about alienation. Professor Iwan Morgan states that "Many of Paul Simon's 1960s' songs have a sense of alienation and loss of identity with the values that American kids had been taught to respect...For the college-educated segment of the 1960s generation this was a result of their alienation from their parents' values of material gain, personal advancement in the workplace and a hierarchically structured society."
    With Paul Simon's peculiar personality and his ability to transfer that to his music, he was a perfect choice to score The Graduate. Benjamin Braddock's character is exactly like Simon in that he feels a loss of identity with his parent's generation. While they expect him to find a job immediately after college he prefers to relax and drink beer next to the pool. He also rejects their common institutions and values of marriage by sleeping with Mrs. Robinson, who is both a married woman and a friend of his parents. Paul Simon's unique view on life and alienation from society is exactly what Benjamin Braddock is trying to show the viewer.

Argued before the 9^th Circuit Court in 1992, this case was Nintendo’s attempt to stop Galoob’s production of the “Game Genie.” The device in dispute attached to standard Nintendo cartridges, which allowed users to input various special codes to perform “cheats” and alter the physics in the games they owned. Nintendo argued that the device created unauthorized derivative works, Galoob stood solidly behind the fair use defense.

The arguments presented some interesting perspectives on the extent of exactly what constitutes a derivative work, and also how far fair use defenses can go. Nintendo’s arguments imply that Galoob’s device unlawfully authorizes users to use copyrighted works in spite of the fact that it does not violate copyright law. This method of argument however was unfruitful considering that the precedence set by the Sony Corp. of America v. Universal City Studios, Inc. case unambiguously established that simply providing the means to commit a type of infringement does not constitute infringement in itself. What further invalidated the argument was the fact that the Game Genie did not even encourage any infringing activities in that the purchase of a legal copy of the game was required to use it with the device. Of the four factors, which determine fair use, the effect on the potential market was what came into play. Since it did no apparent harm to the potential market, the Court was not receptive.

This distinction is very important to the idea of Video Game Copyright Issues because it give a definitive boundary to what we as consumers are physically allowed to do with software that we purchase. This is a case that goes beyond the arguments of copy protected source codes and piracy. With lawsuits like this, Game Makers attempted to exercise control over the products that they sell beyond the point where ownership has transferred to the consumer regardless of if it affected their market. Did it become an argument about the moral rights of the Game Maker to maintain quality of their own brand? Perhaps such an argument would have held more water. However, if the Game Genie case had gone Nintendo’s way, it may have set precedence for more lawsuits of the same nature which may have further pushed the boundaries of DRM technology for software and hardware. Such actions would not be to the benefit of the consumer, and would have only solidified a monopolistic control on not only sale and distribution, but on the very existence of the software itself.