The New York Times article lays out the case, and asks three important questions, central to artists of the 21st century and our understanding of art today: "What is art? At what point does artistic freedom end and copyright infringement begin? And will enforcing copyright restrictions deprive artists of their First Amendment rights?" Contemporary artists like Jeff Koons and Damien Hirst are constantly pushing the boundaries.  In their defense lawyers argue that these artists take the everyday, the mass culture and the mundane, and elevate it to a new meaning.  By blowing the original up, or encasing it, the artist gives imparts a new found symbolism on the artistic work.  However, artists like Jeff Koons are increasingly testing those boundaries.  This is where fair use comes into play.  When is something not quite transformative enough?  When is the original work lost, and when this happens this is unjust to the original artist.  This article brings up these issues and gets us asking where the boundaries lie and how to decide when they are crossed.  It is a problem in the art world that is encapsulated in the controversy of Koons' work but reaches far beyond it. 

            This is the original case brought against Google.  It both supports and rebuts my thesis.  The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful.  I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case.  Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"

            Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims.  They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images.  The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright.  They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.

            In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use.  The court rejects the Fair Use argument partly.  They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement.  They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities.  These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis.  They argue that Google's images likely do harm the potential market for Perfect 10.  This would mean that Google infringes upon the fourth and final factor of Fair Use.  I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images. 

Coach Leatherware Company, Inc., v. ANNTAYLOR, Inc., Laura Leather Goods LTD., A & R Handbag, Inc., and Ron's Elegance Center, Inc.

    No. 90 Civ. 3458 (KTD). United Sates District Court for the Southern District of New York. 8 November 1990.

The case of Coach Leatherware Company, Inc. versus ANNTAYLOR, Inc. and three other plaintiffs was settled in the District Court of New York. Filed in November of 1990 and then appealed at a later time, the case was one of the first publicized cases regarding copyright and piracy. Though the case was considered to be an argument of knockoffs and "confusion in the marketplace," the case is now more important than at its time of filing. The court document claims that Coach "commenced this action for trademark infringement and statutory and common law unfair competition" which now would be grounds for a suit on copyright infringment as the items that were claimed to have been infringed upon are not currently covered by trademark protection. The case cites many other cases of different fashion infringement suits as well as the copyright acts and the Lanham act.

The case describes the articles that were copied or "knocked-off" in detail. Although two aspects were discussed that were trademarked and protected, the name tags that say "Coach" and a series of brass fastenings also trademarked to Coach, many other things that company was suing for were not protected by trademark. Coach claims that "It's not a Coach Bag without a Coach tag." Coach wanted reimbursement for copies of bag shape, handle shape, colors, and style. Because the case was heard withiout evidence as both sides
agreed to introduce the case without exhibits, the defendants were both sure and unsure of their place as copyright offenders. Copyright law was not widely argued at this time for this case, however, it is obvious after reading the case that copyright law protection for fashion and design would have been supportive of argument.

This case is an excellent piece of supportive evidence for my thesis. The case, which defends piracy in fashion design, cites other important cases as well as U.S. Copyright office material and the Copyright Act of 1976, as wel as the Lanham Act. By including these resources, the case is pliable and easy to understand. It is also very applicable to my argument in that it ultimately agrees that the line is blurry between what can be considered public domain and shared versus artistic creativity and genuiness of design.