Blanch v. Koons
2006 U.S. App. LEXIS 26786, 467 F.3d 244, 80 U.S.P.Q. 2d (BNA) 1545 (2006)
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Rule of Law:
The use of a copyrighted work is a protected fair use if the secondary use is highly transformative, altering the original with new expression, meaning, or message, even if the new work is commercial in nature.
Facts:
- Andrea Blanch, a professional photographer, created a photograph titled "Silk Sandals by Gucci" for a feature in the August 2000 issue of Allure magazine.
- Blanch's photograph depicted a woman's lower legs and feet, wearing Gucci sandals, resting on a man's lap inside what appeared to be a first-class airplane cabin.
- Blanch's stated intent for the photograph was to convey an "erotic sense" and "sexuality."
- Artist Jeff Koons was commissioned by Deutsche Bank and the Guggenheim Foundation to create a series of paintings, including one titled "Niagara."
- For "Niagara," Koons saw Blanch's photo in Allure and scanned a portion of it into his computer.
- Koons digitally altered the image by removing the background, inverting the legs' orientation to hang vertically, changing the coloring, and adding a heel to one foot.
- Koons then incorporated this altered image of the legs into his large-scale painting, juxtaposing it with three other pairs of women's legs over images of pastries against a landscape background.
- Koons stated his purpose was to use the image as "raw material" to comment on consumer culture and the way appetites are mediated by mass media.
Procedural Posture:
- Andrea Blanch filed a suit for copyright infringement against Jeff Koons in the U.S. District Court for the Southern District of New York (a federal trial court).
- Blanch later amended her complaint to add Deutsche Bank AG and The Solomon R. Guggenheim Foundation as co-defendants.
- The defendants filed a motion for summary judgment, arguing Koons's use of the photograph was protected as fair use.
- The district court granted the defendants' motion for summary judgment, concluding that the use was fair.
- Blanch, as appellant, appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does an artist's appropriation and modification of a copyrighted photograph for use in a larger collage painting constitute fair use under 17 U.S.C. § 107 when the artist's purpose is to comment on mass media culture, differing from the original's fashion-oriented purpose?
Opinions:
Majority - Sack, Circuit Judge.
Yes. An artist's appropriation of a copyrighted photograph constitutes fair use when the secondary work is highly transformative, adding new expression, meaning, or message. The court applied the four-factor fair use test from 17 U.S.C. § 107. The first factor, purpose and character of the use, strongly favored Koons because his use was transformative; he used Blanch's photograph as raw material for social commentary, a purpose entirely different from Blanch's original intent. Because the use was so transformative, its commercial nature was of lesser significance. The second factor, nature of the copyrighted work, was of limited usefulness because although Blanch's work was creative, it was used for a transformative purpose. The third factor, amount and substantiality of the portion used, favored Koons because he copied only what was necessary for his commentary and removed Blanch's key creative contributions (the setting and context). The fourth factor, effect on the potential market, also strongly favored Koons because Blanch admitted his work caused no harm to her career or the market value of her photograph. Weighing all factors, the court concluded that allowing the use better served the constitutional purpose of copyright to promote the arts.
Concurring - Katzmann, Circuit Judge.
Yes. The disposition of the case is correct because Koons's work is highly transformative and Blanch failed to show any market harm, making this a straightforward case of fair use. However, the majority opinion sweeps more broadly than necessary. The court should not have stated it was "discounting" the commercial nature of the use, but rather should have simply balanced it against the transformative factors. Similarly, the court should not have relied on dictum from Campbell to decide the issue of bad faith regarding Koons's failure to seek permission, as the other factors were sufficient to find fair use. A narrower, fact-specific analysis is preferable to creating broad, bright-line rules in the complex area of fair use.
Analysis:
This decision significantly solidifies the centrality of the 'transformative use' doctrine within the first fair use factor, especially for appropriation art. It clarifies that a secondary work can be transformative if it imbues the original with a new purpose and meaning, even if it's not a parody or direct criticism of the original work itself. The ruling provides substantial legal protection for artists who comment on mass culture by re-contextualizing existing media, and it diminishes the negative weight of a secondary user's commercial purpose when the work is highly transformative. This precedent lowers the litigation risk for appropriation artists and reinforces a flexible, context-sensitive approach to fair use analysis.
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