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Rogers V Koons. No. 234, 388 and 235. United States Court of Appeals, Second Circuit. 2 Apr. 1992.
This is the 2nd Circuit's appellate ruling on Rogers v Koons. The introduction states that the "key" to the suit "brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants' borrowing of plaintiff's expression of a typical American scene — a smiling husband and wife holding a litter of charming puppies." It calls the copying deliberate goes on to give the background facts of the case. It first describes Rogers' work and reputation, followed by an account of how the "Puppies" photograph was created. It then does the same for Koons and the creation of "String of Puppies." It goes back over the "prior proceedings," giving the history of litigation between the two parties and affirms the district court initial ruling.
Moving on to the discussion section, the court eleaborates on the ownership of copyright in an original work of art, which Rogers has, discusses unauthorized copying by defendant, which Koons is held guilty of, and defines the fair use doctrine. It then enumerates the four criteria required to satisfactorily pass as fair use. Under the Purpose and Character of Use criterion, the court says, "Relevant to this issue is Koons' conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use." Essentially, they are saying that he was underhanded about his method of copying. As far as Parody or Satire as Fair Use is concerned, the court says "that even given that "String of Puppies" is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph "Puppies" itself." They argue that Koons was motivated more by profit than satire. The court also holds that Koons copied far more of Puppies than necessary to convey his point. "Koons went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers," says the court. Lastly, the court orders that the effect of the use on the market value of the original has been harmed, and "there is simply nothing in the record to support a view that Koons produced "String of Puppies" for anything other than sale as high-priced art. Hence, the likelihood of future harm to Rogers' photograph is presumed, and plaintiff's market for his work has been prejudiced."
"Koons Affirmed (Don't Blanch)." The Patry Copyright Blog. 26 Oct. 2006. 28 Nov. 2006 <http://williampatry.blogspot.com/2006/10/koons-affirmed-dont-blanch.html>.
This article is a guide to the Koons v Blanch ruling and takes us through the courts' decisions regarding the four criteria that constitute fair use step by step. Fundementally, he says, the case boils down to two points, that "Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." He summarizes the background of the case (Blanch paid $750 for original ad in Allure magazine, Koons incorperates exact image in his work "Niagra" in order to comment on the way popular images appeal to our most basic instincts and desires.)
Party thinks the majority's distinction between parody and satire is helpful and shows that "Koons had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" He also brings up the issue of bad faith, which has not been mentioned in the two other cases. I think this comes out of Blanch's claims that its pratically a matter of etiquette, she's been quoted as saying something along the lines of "if the artist is still alive, you should at least ask for permission to use their work." I am also interested in the comment posted in reply to this blog in which the author writes, "A major factor in the difference between Rogers and Blanch appears to be that the court found the use of the feet from the Blanch photograph transformative because they were recast in a different position and that the important background elements (man’s lap, aircraft cabin) were not copied. In other words, the Blanch photograph was used more as a reference than as the foundation for the painting."
Greenberg, Lynne A. "THE ART OF APPROPRIATION: PUPPIES, PIRACY, AND POST-MODERNISM." Cardozo Arts & Entertainment Law Journal 11 (1992): 1.
Greenberg calls appropriation art a “wide-reaching trend which has arisen as a response to post-modernist criticism.” She says its reaction to the formalism and aesthetics of a media-saturated society. Most importantly, echoing Koons claims about the school of thought he belongs to, Greenberg says, “Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality.”
In the introduction, she says the article will focus on the challenges postmodernist art poses on copyright law and argues, like the Columbia Law Review editorial that visual art requires a different set of rules than other copyrightable entities. In the section of her piece about the infringement vulnerability of photography, and “its relationship to the originality requirement” she uses Rogers v. Koons to illustrate her point that we need a different way to interpret copyright as it interferes with the objectives of postmodern art. In her analysis of the case, Greenberg maintains that the court’s perspective is skewed because Koons’ work is so expensive. She says that although the court claims that Koons’ work has an economic impact on Rogers, “It seems farfetched to imagine that Koons's "high-priced" kitsch, sold in the elite world of the art gallery, could even tangentially affect the market for either Rogers's commissioned photographs or Rogers's postcards, sold predominantly in gift shops”. Basically, she concludes, the court ruled fairly according to current laws, this case shows that these doctrines are in need of revision in order to make allowances for appropriation art. “The recent decision of Rogers v. Koons simultaneously underscores the precarious position occupied by artists practicing radical appropriation strategies, and accentuates the consequences of so rigorously enforcing the limited monopoly rights granted by copyright law,” she explains.
Tyson, Kimball. "The Illegal Art Exhibit: Art or Exploitation? a Look At the Fair Use Doctrine in Relation to Corporate Degenerate Art." Southern Methodist University School of Law Computer Law Review & Technology Review 9 (2005): 425.
This article responds to the "Illegal Art" exhibit that toured the country and features Forsythe's work. The author (who repeatedly spells the artist's name "Forsyth") wants to assess whether or not Food Chain Barbie is fair use--even though the court has already ruled it is. She contends the artists are not sincere in their parodies, and thinks they are actually using art to serve their personal "greedy" objectives. After an abbreviated history of art, Tyson says these works are "an ancillary to Pop Art of the 1960's that take corporate images and use them in their works to convey a parodic message not only of the image itself but of the larger societal scheme of which it reflects." She also summarizes the Copyright Act and defines Fair Use. Instead of actually analyzing what the court said about Forsythe's work, she merely repeats it, and it seems, decides to agree with their ruling. One of the few useful things about this article is her comparison of Forsythe and Koons:
"In the Rogers case, there is no doubt that Koons' use of the original work would compromise Rogers' market of the "Puppies" and "would prejudice the market for the sale of "Puppies" notecards or any other derivative uses he might plan." 247 However, in Forsyth's situation, his photographs seem to have little to no effect on the commercial gain of Mattel based on their copyrighted Barbie Doll. Photographs of Barbie in a blender or in a casserole dish are not really going to have a significant chilling effect on Mattel's market; [this] weighs in his favor."
Tyson allows that the Barbie series is a fair use, but remains suspicious of Forsythe's motives. She writes, "The idea of using art and distorting already existing images to convey a message, to illustrate the absurdity of our times, seems very vulnerable to exploitation. In Mattel Inc. v. Forsyth, the artist had very distinct aims in his creation. Call this a derivative work, call it exploitation. Regardless, perhaps these artists used the well-known corporate images as a way to make money. Just as Volkswagen manipulated the automobile market and somehow made consumers feel as though they were really stepping out of conformity in buying a VW, so these artists, under the pretense of satire and art as corporate parody, had an objective no different than that of the corporations and consumer crazed society which they mocked: personal gain motivated by greed, selfishness, and envy." To me, her argument falls flat given that Forsythe did not profit hugely from the works. Art is his profession, his means of making a living, and to charge $400 for a work that he spent time creating does not seem greedy or unreasonable. She contradicts herself, but this piece is valuable to my research because it takes a position I haven't yet encountered and deals with the concept of artists' "worthiness" so to speak and the merit of their intentions.
Zando-Dennis, Julie. "NOT PLAYING AROUND: THE CHILLING POWER OF THE FEDERAL TRADEMARK DILUTION ACT OF 1995." Cardozo Women's Law Journal 11 (2005): 599.
This article is about the Dilution Act of 1995, which is relevant to the Forsythe case because Mattel claimed that his use of their trademark could both blur and tarnish it, meaning, confuse consumers or damage the product’s image/reputation. Zando-Dennis explains that works of satire and parody are most likely to be accused of causing dilution. Mattel has a history of filing suit as soon as they get wind of any unauthorized use of the Barbie name or image, says Zando-Dennis, who points to the website www.trademarks.org (devoted to criticizing Mattel) as evidence of the loathing their lawsuits have engendered amoung advocates of free speech. She delves further into the definitions of blurring and tarnishing, giving useful and clear examples how they can be both beneficial and harmful.
The second section of her article is dedicated to “Subversive Activities that Parody Mattel’s Barbie Doll,” including Mark Napier, an internet artist who produced digitally altered images of Barbie and the band Aqua, famous for their song "Barbie Girl" that all resulted in litigation. "Another artist, Paul Hansen, sold 150 modified Barbies as art works, on which he made a profit of around $ 2,000. Mattel sued for damages of $ 1.2 billion," she writes illustrating how rediculous Mattel makes itself appear. Forsythe's case is discussed in the section "Current Trends, Successes and Remaining Challenges." Zando-Dennis quotes Forsythe's lawyer as saying "This case is about insisting that a corporate giant can't stop an artist from using one of their products to create art and to comment on our society. If we were to allow that to happen, the content of our culture would be greatly reduced and emptied. We cannot allow Mattel to do that." Clearly, Zando-Dennis vigorusly agrees with the ruling in Forsythe's favor. She admires the way the case has "significantly liberalized trademark law" and hopes other circuits (the 8th in particular) will follow the 9th's lead.
Mattel Inc V Walking Mountain Productions. No. 01-56695, 01-57193. US Court of Appeals for the Ninth Circuit. 6 Mar. 2003.
Filed December 29, 2003. Opinion by Judge Pregerson. This appellate ruling confirms the district court’s grant of summary judgment to Tom Forsythe and dismisses Mattel’s claims that he infringed on their copyrights. Because this article contains a “background” section that details the previous trial extensively, I am going to use this case instead of the first one. It is more comprehensive and recent. The document begins by describing the nature of Forsythe’s work: “a series of 78 photos entitled ‘Food Chain Barbie’ in which he depicted Barbie in various absurd and often sexualized positions…For example, ‘Fondue a la Barbie’ depicts Barbie heads in a fondue pot.’” It talks about the series’ limited market success which amounted to an income of $3,659, half of which came from purchases made by Mattel investigators. The court notes his self-given title of “Artsurdist” and concedes that his work attempts to communicate a “serious message with an element of humor” that intends to critique and ridicule Barbie. It then goes over the various motions and actions that lead up to this particular appeal before reaching the “discussion” section.
This is really the heart of the case, where Pregerson explains why “Food Chain Barbie” is considered fair use. He confirms the three reasons cited by the district court which are that 1) his use was a parody criticizing Barbie 2) he only copied what was necessary for this purpose 3) his photos couldn’t affect the market demand for Mattel’s products. He argues that Forsythe’s work is transformative because it “presents the viewer with a different set of associations and a different context” than Mattel does. Forsythe did not display the entire Barbie in his pictures, and only showed what he needed to in order to convey his message. “We do not require that parodic works to take the absolute minimum amount of the copyrighted work possible,” Pregerson says. And although the works were intended to be sold commercially, the fact that they were unsuccessful shows that he’s not taking any business from Mattel because they appeal to different markets; Mattel to children’s toys, and Forsythe to adult-oriented artistic photographs.
Forsythe, Tom. "Food Chain Barbie & the Fight for Free Speech." National Coalition Against Censorship. 10 Aug. 2004. 27 Nov. 2006 <www.ncac.org/art/20040810~USA~Tom_Forsythe_Food_Chain_Barbie.cfm>.
Forsythe posted this statement on August 10, 2004 as a follow-up to the District Court’s June 24th ruling ordering Mattel to pay his legal fees, which amounted to $2.1 million over the course of five years of litigation, from 1999-2004. In this piece, he maintains that Mattel’s only tactical strategy was to overwhelm him with the cost of his defense and essentially bankrupt him into submission. He calls his case precedent-setting and says it should will discourage corporations from filing suit against artists who criticize their product and will encourage lawyers to work for other artists that get sued because they are more likely to be compensated, like Forsythe’s counsel was.
The rest of the statement details the Mattel v Walking Mountain productions saga from start to finish. He was served with a copyright and trademark complaint from Mattel, decided to fight back, searched unsuccessfully for representation, finally got some help from the ACLU of Southern California who petitioned a San Francisco firm (Howard, Rice, Nemerovsky, Canady, Falk & Rabin) to take the case pro bono. He defends his work as an “obvious” example of fair use—“political and social criticism presented with humor and parody.” Forsythe calls the trial “an essential fight” and says that free speech is paramount to our free society. He argues that it is not the government that censors us, but corporations. “They make their brand ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism,” he writes.
Because we are so sensitive to the threat of official censorship, we don’t notice when it is privately exercised by powerful companies with unlimited funds at their disposal. Forsythe calls the legal system a “boxing ring for the rich.” “I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives,” he explains. The artist’s responsibility is thus to comment on the brands that dominate our lives in order to communicate with the world.