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.

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.