Rogers v. Koons - Piracy or Parody?

Rogers v. Koons – Piracy or Parody?

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” – Holmes

A. Introduction

It is apparent at the very outset how the court feels about Jeff Koons. It is no stretch to suggest that Koons did himself no favours by disregarding a court order and flouting the courts authority. However, Koons’s conduct and the court’s reaction to it aside, there are a number of unsettling things about this decision. I will critically review this decision by pointing out some of the basic flaws in the court’s decision. The first and second section will have a decidedly economic bent. This cannot be helped. This is because, in its analysis of fair use, the court is mesmerized by both the economic impact of Koons’s appropriation on Rogers and Koons’s apparent profit motive. Finally, drawing from Carys Craig’s article on natural rights, I will attempt to flesh out the theory that underpins the Second Circuit’s decision in this case.

B. Fair Use

i. Parody

Koons claimed that his sculpture should be exempt because of its social commentary. Koons’s fair use argument emphasized that his work belonged within the postmodernist tradition of appropriation art; that is, the incorporation and transformation of commonplace items or themes into artistic creations. In Koons’s view, the sentimentality of Rogers’ postcard fit squarely within the parameters of banality, the overarching them of his current work. While acknowledging that the postmodernist practice of “appropriation” existed, the court nonetheless rejected Koons’s arguments. Koons’s sculpture did not fit within the court’s narrow definition of parody. Parody, according to the court can be a critique of modern society but “the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.”

The court is drawing a distinction here between target parody, a kind of parody where the work itself is being critiqued, and weapon parody, where the work is transformed and used to critique something else altogether. This is often a difficult distinction to make, especially when an artist is critiquing a genre as opposed to a particular piece of art. This is what Koons is in fact doing. He is using this work because it is representative of a particular genus of sentimentalist photography that he finds loathsome. At the end of the day, it does not matter if Koons’s audience knows who Rogers is or what original work inspired the sculpture. Indeed, as Andrew Watt points out, the very point of appropriation art is to find unexplored areas of contemporary culture upon which to comment and, by definition, these areas are often non-obvious and will not easily be “conjured up.” Given this, courts are likely to find that there is not a sufficient connection with an original work in postmodern parody. The irony here is, and Watt recognizes it, is that Negativland’s appropriation of a U2 song is more likely to pass muster as fair use than Koons’s sculpture even though the two songs are more likely to compete in the same market than Koons’s and Rogers’ work.

From an economic perspective, the distinction between target and weapon parody makes sense. The economic rationale for this distinction rests on the idea that high transaction costs will prevent a value maximizing exchange. For example, when the parody targets the plaintiff’s work, the parties are unlikely to arrive at a price that allows the defendant to critique or lampoon the plaintiff’s work. On the other hand, if the defendant uses the parodied work as a weapon to comment on society, she should have little trouble licensing the work. Moreover, if the copyright holder refuses, the artist can come to terms with another copyright holder of an equally usable work.

This is a preview of the whole essay

Licensing, however, is not free of difficulties. In some instances, an artist will not able to license his first choice or he will wind up paying more than he expected. Some copyright holders may wish to create a kind of contractual destination right and grant licenses only if they approve of the way their images are used. This, in turn, can undermine the critical message intended by the artist. Licensing also entails transaction and contracting costs. Finally, if the appropriation artist chooses not to pay, as Koons did, he faces risk costs of potential litigation that could be significant given that a fair use defense will involve resolving the highly subjective “target versus weapon” question. When these costs are weighed against the incentive effects to persons creating appropriated images, the most efficient legal rule seems to be to allow appropriation provided the artist creates a unique work. More on this later.

Another of the arguments that the court advanced to justify its findings that the sculpture was not a parody was that Koons failed to acknowledge Rogers’ photo as the inspiration for his work. In other words, the sculpture failed to inform the audience that there was an underlying original art work. In the court’s view this ensured that the rights of the copyright owner would be acknowledged. Without this limitation, the court stated, one could make use of another’s copyrighted work “solely on the basis of the . . . claim to a higher or different artistic use.” This is a ridiculous assertion since a determination of fair use requires a review of all the factors. It is also ridiculous because the court seems to be suggesting that attribution might have rendered Koons’ work a fair use. Attribution alone does not free an artist from the threat of liability for infringement. In addition, the court also failed to consider whether attribution would protect the secondary user from a claim of infringement where the source is not commonly known. If, as the court suggests, the copied work must “conjure up” the original work in order to be classified as a parody, then what value would there be to attribution if no one knows Rogers is or is familiar with his photo “Puppies”?

Finally, the court examined Koons’s conduct in appropriating the photo. The court found that Koons’s use was intentionally exploitive, and that he had exhibited bad faith in removing the copyright mark from the note card. As Andrew Watt points out, the act may have been “stylishly shocking iconoclasm” but it could hardly be deemed bad faith. Moreover, the issue was not Koons’s conduct, but whether or not his use was fair. It is completely possible for someone to act badly and not be guilty of copyright infringement.

ii. Market Substitution

Under the fair use test, the court must also assess the likely effect of the unauthorized use upon the potential market for the original work. Here the court also found against Koons. The court held that Koons’s appropriation of “Puppies” resulted in a diminution of the market for “authorized” sculptures of the photograph. The pertinent question was whether or not there was a “meaningful likelihood of future harm,” which did not depend upon demonstrable proof of actual harm. The court concluded that Koons’s use of Rogers’ note card was “piracy” and affirmed the lower court’s judgment. The court did not examine whether or not the sculpture would compete in the same market with Rogers’ postcard. Instead, the court focused on whether Koons had planned to profit from his use of the Rogers’ photograph. The court reasoned that because Koons had realized a profit there was some meaningful likelihood of future harm. Clearly this is nonsensical.

Moreover the court relies on an outmoded and facile notion of the artist as a noble pauper. The court’s ruling seems to imply that to work for money is vulgar and beneath the true artist. It is inappropriate to judge the fairness of use according to whether or not there has been a profit realized by the appropriating author. The court’s determination should have focused on whether Koons’s work would likely impair the market for Rogers’ photo and not whether there was a market for Koons’s own work. Indeed, it is irrelevant what incentives existed for Koons’s work but whether his appropriation negatively impacted the market for Rogers work.

One of the problems in analyzing the effect of the copy on the market for the original is determining the size and scope of the relevant market. In Koons, the court found, that the sculpture impaired the market for Rogers’ photograph because its existence precluded the possibility that Rogers would be able to sell the rights to another sculptor. The court did not consider whether Rogers had ever sold a photo for that purpose or whether he had ever sold a photo for any transformative purpose whatever. Just because a derivative use could be made of a work does not mean that there is a market for that work. The more appropriate question is whether there is an extant market for these works that the plaintiff is prevented from accessing in the future due to the appropriation. If there is no such market then there is no mischief.

Also, the court based its findings of market impairment on a false analogy. The court analogized the current situation to one involving an unauthorized movie adaptation of a book. The court held that this would be unfair use because of its effect upon the author’s potential to sell the adaptation rights. However, books are regularly adapted for cinema and thus there is a natural market for film adaptations of novels. Furthermore, once a book has been adapted, there is almost no likelihood that another movie will be – there is almost zero likelihood of multiple adaptations. In this way, the adaptation closes or kills the secondary use market. It is clear that there is no such natural market for kitschy black and white photos. It is at best unlikely that another artist would be dissuaded from using Rogers’ photo because of Koons’s use. To the extent that there is a market for Rogers’ postcards as objects of appropriation art (and I doubt that there is), this market is unaffected by Koons’s appropriation. The court would have done well to heed Souter J’s admonition in Campbell v. Acuff-Rose: “when there is little risk of market substitution” due to “the new work’s minimal distribution in the market … taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use.” This is a much more balanced approach to both the question of market impairment and parody.

Again, the consideration of the actual market for Rogers’ photograph makes good economic sense as well. Rogers has already been paid for the original work and has sold countless postcards. Allowing appropriation would have no significant impact on the incentives to create new commercial photographs or make postcard copies but would enable potentially large savings in access and transaction costs for Koons. The socially efficient outcome would be to allow Koons to use the image without the copyright holder’s permission.

C. Of Original Authors and Interlopers

It is clear from the beginning that the court is operating from a particular conception of authorship. It is a similar conception of authorship that Carys Craig calls the “Original” author perspective. According to Craig, this perspective derives much of its moral weight from what she calls “rights-fetishism” or too strict an adherence to a Lockean, natural rights justification for copyright. This idea is wrong-headed because absolute individual rights to intellectual property never existed. Craig posits that an author’s right to an incentive was originally based on social utility grounds and it is only by some recent illogical ‘slight of mind’ that it has been transformed into a powerful individual moral entitlement. Jeremy Waldron has characterized this illogical leap in the following way: “social policy arguments … get converted into individualist arguments, and thus to be assimilated much more closely to rhetoric associated with material property rights.” This gives rise to a departure from public-interest-based justifications for copyright and gives pride of place to an individual’s a priori claim to the products of her intellect. The language of balance is used to speak about the putative conflict between two equally meritorious interests, the public’s and the author’s. What underlies the rhetoric of balance is the belief that, in the long run, the public’s interest and the author’s interest coincide. Thus, giving strong rights to authors is seen as tantamount to securing the fundamental goals of copyright – maximizing social welfare, cultural products etc.

However, this logic does not hold when the rights granted to the author do not align with the public interest. In particular, this logic is put to the test in the context of transformative authors like Koons, what Craig calls “productive users of copyrighted material.” These secondary creators while often making valuable contributions to the cultural mix are considered somehow substandard when confronted with the very powerful rights (and moral superiority) accorded original authors. Indeed the language of natural rights skews the debate towards maximum protection of the author as against the public’s interest in maximum creation and access.

As Craig contends, when finding infringement or refusing a fair dealing defence, it is the sine qua none of the natural rights champion to preface his argument with a “sentimental passage depicting the author’s position in terms of entitlement, effort, and labour” and to contrast this with an account of the defendant as lazy, opportunistic, or scheming. This is exactly what the court does in Koons. Rogers is seen as the diligent creator, whiling away in his humble workshop, “making his living by creating, exhibiting” and publishing. Koons on the other hand is portrayed as some kind of scheming charlatan and his work as “deliberate” copying, “plagiarism” and “piracy.” Moreover, the court accuses him of assuming that he could get away with piracy because he was a “significant player in the art business.” [emphasis mine] Once Koons is characterized as an “unproductive interloper” who is not capable of contributing to human knowledge or craft, the court can comfortably disregard his claim. Moreover, when pride of place is given to the rights of the original creator “the dialogic processes of cultural production become insignificant” and anyone who makes use of the original creator’s product for their own creative activity becomes a thief.

As Craig argues, the goals of maximizing social welfare and cultural production are only attainable if it is acknowledged that “circulation, transformation and consumption” are important in their own right. Craig contends that this focus on the moral supremacy of the original creator leads to a very narrow approach to the fair dealing defence “regardless of the social and political value” of the transformative uses made of already copyrighted works. It is abundantly clear that the court in Koons is so fixated on the “drowned and saved”, “creator/interloper” natural rights bias that it cannot fairly consider the extent to which Koons creation is in fact new, creative, and valuable in its own right.

D. Conclusion

It is likely that Rogers v. Koons was not well received by the art community. One can only assume that there were fears that artistic freedom was undermined and innovation retarded. This is probably an exaggeration. The more likely outcome is a Coasean one, that appropriation artists will pay fees to license the images they appropriate i.e. in the absence of transaction costs the outcome will be independent of the assignment of rights or liability rules. However, the decision is unsatisfying on a number of levels. First, the court could have dispensed with the overly subjective distinction between target and weapon parody or at least allowed for a more nuanced appreciation of parody that is both target and weapon at the same time. Second, the test for market impairment should be about damage to an actual potential market otherwise it has no real probative value. Finally, the court was too concerned with the moral superiority of the original creator to consider whether their decision would result in any public benefit over the long run.

This should make Matt happy.

It is right to focus on derivative works here since there is no likelihood that the audience for Koons’s work is in any way related to the audience for Rogers’ work. This is due in large part to the entirely different ideas which animate the works in question. There are a number of countries that permit truly transformative works that do not give rise to market harm as long as these works represent works in their own right. Michael Spence’s article from last year’s casebook is a solid critical assessment of parody and transformative works.

The court would do worse than to import causation principles from tort liability in this context.