Amicus Curiae Brief — Koons v. Rogers

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49 ~

SL No. 92-297

o;! IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

JEFF KOONS,

Petitioner,

VS.

ART ROGERS and SONNABEND GALLERY, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF OF

NATIONAL ARTISTS EQUITY ASSOCIATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

LAWRENCE C. BARTH

Counsel of Record

MUNGER, TOLLES & OLSON

355 South Grand Avenue

Los Angeles, California 90071

(213) 683-9100

Attorneys for Amicus Curiae

NATIONAL ARTISTS EQUITY ASSOCIATION

Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 * (714) 720-1510

-a-

No. 92-297

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

JEFF KOONS,

Petitioner,

VS.

ART ROGERS and

SONNABEND GALLERY, INC.,

Respondents.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

National Artists Equity Association respectfully

moves for leave to file the accompanying brief as amicus

curlae in support of Petitioner Jeff Koons. Petitioner

and Respondent Sonnabend Gallery, Inc., through their

respective counsel of record, have consented to the filing

of this brief. Respondent Art Rogers, through his coun-

sel of record, has declined his consent.

National Artists Equity Association (NAEA) is a

nonprofit organization with approximately 5,000 mem-

bers nationwide. Its membership is made up of profes-

sional visual artists who work in numerous fields and

media, including painting, printmaking, sculpture, and

photography. Since its founding in 1947, NAEA has

worked to further the aims of visual artists and to ad-

dress their legal and professional concerns.

<i.

This case involves a delicate balance between two

important rights, each of which is of critical concern to

the members of NAEA. On the one hand, the copyright

laws vest in the creators of original works, including

works of visual art, certain rights to prevent their copy-

ing. Balanced against those property rights are the fun-

damental rights of artists to comment upon and criticize

the world around them. Since the beginning of this

century, such creative expression has often included

references to symbols and imagery from the popular

culture in which they live and work.

The decision of the Court of Appeals for the Second

Circuit, while purporting to protect copyrights, failed

even to address the significant interest in free expression

reflected in the fair use doctrine, and in prior cases that

have recognized a defense to infringement actions in

cases involving comment and criticism. Its ruling has

already had a profound chilling effect on visual artists,

who now fear that the common practice of referencing

existing images in their work will expose them to

liability for copyright infringement

NAEA respectfully submits that the attached brief in

support of the petition will provide the Court with addi-

tional information regarding the artistic tradition of

which Petitioner’s work is a part, as well as the chilling

effect of a rule, such as that promulgated by the Second

Circuit, that would require visual artists to license rights

in images that they reference as a condition to their

criticizing or commenting on such images. The interests

of NAEA and its members would not otherwise be ade-

quately presented by the parties to this case.

For the foregoing reasons, NAEA respectfully

quests that the Court grant it leave to file the attached

brief amicus curiae.

Dated: September 11, 1992.

Attorneys for

Respectfully submitted,

Ls om sy —.

LAWRENCE C.

Counse l ( yf Rec rd

BARTH

MUNGER.,

Amicus Curiaé

NATIONAL ARTISTS

ASSOCIATION

TOLLES & OLSO

EQUITY

(C*

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. «4:23 4% as « hee reee

INTEREST OF AMICUS CURIAE ......... 1

INTRODUCTION (.2%-5 64 w © 6 apa eee

STATCIREINE 5 x since eee eee a eae

A. The Artistic Tradition At Issue In This

Case 2

B. Jeff Koons . be. 8 Soe

ARGUMENT «4 6°84 eo ¥ & « 4 eee ee

A. The Second Circuit Erred In Holding

As A Matter Of Law That Koons’

Work Was A C¢ Opy Ot Rogers’

PRMMORTAIN «2 2 6s 50s lee eee eee

B. Koons’ Work Is A Fair Use Of

Rogers’ PROtOSTODR. « 6. 6s os 2 oe ee

C. Koons’ Work Is In The Nature Of

Creative Expression Rather Than

Commercial Exploitation. ....... .14

D. Koons’ Work Is A Parody And Satire

Of Rogers’ Photograph, And Of Its

CJCRIG... oc tate Be e Ce eee

E. Koons’ Work Had No Effect On The

Economic Value Of Rogers’ Right io

Exploit His Photograph. ........ .17

- ii -

CONCLUSION « oie. eee 19

Appendix A

Marcel Duchamp, Fountain. 1917.

Appendix B

Marcel Duchamp, L.H.O.0.Q.. 1919.

Appendix C-1

Roy Lichtenstein, Hopeless. 1963.

Appendix C-2

Panel from “Run For Love!,” in

Secret Hearts, 83 (November 1962).

Appendix D-1

Roy Lichtenstein, Drowning Girl. 1963.

Appendix D-2

Panel from “Run For Love/!,” in

Secret Hearts, 83 (November 1962).

Appendix E

Jasper Johns, Painted Bronze II. 1960.

Appendix F

Andy Warhol, Campbell’s Soup Cans. 1962.

Appendix G-1

Jeff Koons, Rabbit. 1986.

Appendix G-2

“Bunny” toy. Inflatable vinyl, distributed

by F.W. Woolworth Co., New York;

manufactured in Taiwan.

- lil -

TABLE OF AUTHORITIES

Cases

Consumers Union Of the United States,

Inc. v. General Signal Corp.

724 F.2d 1044, (2d Cir. 1983),

cert. denied, 469 U.S. 823 (1984)

Elsemere Music, Inc. v.

National Broadcasting Co.

482 F.Supp 741 (S.D.N.Y.), aff'd,

623 F.2d 252 (2d Cir. 1980) . .

Feist Productions, Inc. v. Rural

Telephone Service Co.

111 S. Ct. 1282 (1991).

Fisher v. Dees

794 F.2d 432 (9th Cir. 1986). .

Harper & Row, Publishers, Inc. v.

Nation Enterprises

Rie US. Sar Cee) 6 6 eee

Iowa State University Research Foundation,

Inc. v. American Broadcasting Cos.

621 F.2d 57 (2d Cir. 1980). ....

Metro-Goldwyn-Mayer, Inc. v.

Showcase Atlanta Coop. Prods., Inc.

479 F.Supp 351 (N.D. Ga. 1979). . . .

Sony Corp. of America v. Universal

City Studios, Inc.

464 U.S. 417(1984)..........

Page

16, 18

.16

15, 16, 19

- =a + Seo

ay ee 16

.10,11, 18

ies

Page

Stewart v. Abend

OPS Sims Bert (E990) oe ek al we Ane OS ii, 13

Twentieth Century-Fox Film Corp.

v. MCA, Inc.

Fis €.20 1327 (9 Cir. 1983) 2. ok ak 12

Twentieth Century Music Corp. v. Aiken

TOG Vis FORCES TO) Soe ek oe a ww OS 1

United States v. Paramount Pictures, Inc.

aw Sm. BOO CE9ES) oe a kvl ee 1]

Walt Disney Productions v. Air Pirates

581 F.2d 751 (9th Cir. 1978), cert. denied,

OP Wie SPR UNTER 6 ae wa ae 16

Warner Brothers, Inc. v. American

Broadcasting Cos.

FE ee BOE EEE Ck ee ok os eRe 16

Statutes

CAE 2 att by ne 1, 13, 14, 16, 18

Miscellaneous

W. Camfield, Marcel Duchamp: Fountain (1989). . . 3

C. Greenberg, American-Type Painting, in Modern

Art and Modernism: Rethinking Representa-

tion (F. Frascina & C. Harrison eds. 1962). . . . 3

C. Greenberg, Modernist Painting, in Modern

Art and Modernism: Rethinking Represen-

tation (F. Frascina & C. Harrison eds. 1962). . . 2

R. Hughes, Nothing If Not Critical (1990). .

R. Hughes, The Rise of Andy Warhol, in Art

After Modernism (B. Wallis ed. 1984) .

Light, Parody, Burlesque, and the Economic

Rationale for Copyright,

11 Conn. L. Rev. 615 (1979).

R. Mutt (M. Duchamp), The Richard Mutt

Case (1917) .

3M. Nimmer & D. Nimmer, Nimmer on

Note, Post-Modern Art and the Death of

Obscenity Law, 99 Yale L.J. 1359 (1990)

A. Schwartz, The Complete Works of

Marcel Duchamp (1969) .

C. Tomkins, The Bride and the Bachelors:

Duchamp, Tinguely, Cage, Rauschenberg,

Cunningham (1968) .

K. Varnedoe & A. Gopnik, High & Low:

Modern Art and Popular Culture (1990) .

Page

(oe)

passim

BRIEF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The interest of amicus curiae National Artists Equity

Association is as set forth in the preceding motion for leave

to file this brief in support of the petition for a writ of

cerlioragi.

INTRODUCTION

The central question presented by the petition in this case

is whether significant works of artistic expression that refer-

ence existing copyrighted works in order to criticize or

comment upon those works, or upon society generally, may

be deemed infringing, notwithstanding explicit protections

for commentary and criticism set forth in the fair use provi-

sion of the Copyright Act, 17 U.S.C. § 107.

The Court of Appeals for the Second Circuit found such

referential art to be infringing as a matter of law, without

any inquiry into whether the primary nature of the challenged

work was by way of artistic expression, rather than commer-

cial exploitation, and notwithstanding the Court’s explicit

finding that Koons’ sculpture was “a satiric critique of our

materialistic society.” 960 F.2d at 310. In so holding, the

Court of Appeals ignored the clear language of the Copyright

Act, and the prior teachings of this Couri with respect to the

value of artistic expression.

This Court has long recognized that the ultimate purpose

of the copyright laws is to serve “the cause of promoting

broad, public availability of literature, music and other arts.”

Twentieth Century Music Corp. v. Aitken, 422 U.S. 151, 156

(1975) (Stewart, J.). If the law’s “ultimate aim is to stimu-

late artistic creativity for the public good,” id., the decision

of the Court of Appeals has seriously impeded that aim.

Indeed, the Second Circuit’s opinion is already having a

profound chilling effect on the creation and exhibition of an

important genre of contemporary artistic expression.

STATEMENT

Amicus Curtae National Artists Equity Association is an

Organization that represents some $5,000 visual artists

throughout the United States. Its members care deeply about

the copyrights they hold in their original works. At the same

time, the artists of this country dearly value their right to

speak out through their work on important issues, and to

express critical views regarding the world around them.

A. The Artistic Tradition At Issue In This Case

An important function of the arts — and particularly

modern and post-modern arts — is to comment on the mod-

ern world, including the images and symbols and language

that form our popular culture. Since the beginning of this

century, referential art — art that references and comments

upon existing imagery — has played a seminal role in the

ongoing dialogue about what “art” means, and its role in a

modern (or post-modern) world.

In addressing the dispute between Jeff Koons and Art

Rogers — and the importance of a rule of iaw that allows

legitimate artists to comment critically on existing imagery

from the culture around them — it is vitally important to

understand the role that referential work has played in twen-

licth century modern and post-modern art. “Modernism” is a

movement that began in the last half of the nineteenth cen-

tury and thrived in the first half of the twenticth. See gener-

ally Modern Art and Modernism: Rethinking Representation

(F. Frascina & C. Harrison eds. 1962). According to

Clement Greenberg, the leading scholar and critic of late

modernism, it was a purist movement that derived many of

its tenets from romantic notions of creation. See C. Green-

berg, Modernist Painting, in Modern Art and Modernism,

Supra. “Late modernism distinguished between good and

bad art by demanding that good art be pure, self-critical,

Original, sincere and serious.” Note, Post-Modern Art and

_ 7 gees

the Death of Obscenity Law, 99 Yale L.J. 1359, 1363 (1990),

see C. Greenberg, American-Type Painting, in Modern Art

and Modernism, supra.

In the 1920s, Marcel Duchamp mounted a frontal assault

on modernism (and, in the process, turned the art world on

its head) by importing commonplace objects and images into

what were traditionally “artistic” contexts. By displaying

banal “found” items from the popular culture in gallery and

museum settings, he forced the viewer to confront questions

about what separates “art” from the myriad of images and

objects that surround us in our everyday lives. Duchamp’s

exhibition of common, and often vulgar, objects as art en-

raged many. His Fountain, see Appendix A, first exhibited

in 1917 (under the pseudonym R. Mutt), was no more or less

than a Standard urinal from a plumbing supply house, placed

on a pedestal. See A. Schwartz, The Complete Works of

Marcel Duchamp at 521 (1969); W. Camticld, Marcel

Duchamp: Fountain (1989). Commenting upon the work’s

exclusion from an important exhibition, Duchamp wrote that

he “took an ordinary article of life, placed it so that its useful

significance disappeared under the new title and point of

view — created a new thought for that object.” R. Mutt (M.

Duchamp), The Richard Mutt Case at 5 (1917). Despite the

contemporancous reaction to Duchamp’s “readymades” (as

they came to be known), it is clear that they became

“vchicle[s] for some of the most tendentious and longest-

burning intellectual debates in this society.” K. Varnedoe &

A. Gopnik, High & Low: Modern Art and Popular Culture

278 (1990) (hereinafter High & Low).

In 1919, Duchamp again enraged the established art world

by displaying as art a small mechanical reproduction of Da

Vinci’s Mona Lisa, to which he had added a pencil mustache

and goatee. See Appendix B. Once again, his attempt was to

question then prevailing romantic notions of “art” and crea-

tion and, once again, his “borrowing” and defacing a well-

recognized icon was unpopular. Over time, it has become

one of the most important examples of an artistic tradition

that continues to this day.

The “Pop Art” movement of the 1960s and 1970s was, in

a real sense, a continuation of the post-modern dialogue

begun by Duchamp. See C. Tomkins, The Bride and the

Bachelors: Duchamp, Tinguely, Cage, Rauschenberg, Cun-

ningham (1968); High & Low, supra, passim. By referencing

images from “pop” culture, artists such as Roy Lichtenstein,

Robert Rauschenberg and Jasper Johns once again demanded

of their viewers that they confront difficult questions about

the nature of art, and its place in an ever more visually com-

plex society. They began to question, and to challenge, the

solemnity inherent in late modern art by incorporating in

their work images from the “pop” culture around them.

Lichtenstein’s cold, flat renditions of imagery (and dialoguc)

from comic books, see Appendices C-1, D-1, referenced a sct

of representational cliches Known, to his viewers, whether or

not they recognized the specific sources for Lichtenstein’s

paintings. See Appendices C-2, D-2. Rather than parodying

or commenting upon particular, well-known panels from the

comics, Lichtenstein’s work was — and remains — impor-

lant as a4 commentary upon a genre. By transforming his

source material through choices involving media, size, color

and simplification of imagery, his became an important voice

in the dialogue about art and mass culture.

Painted Bronze Il, see Appendix E, is considered one of

Jasper Johns’ most important contributions to the debate

concerning the nature of art, and its relation to imagery

found in, and borrowed from, the popular culture. Johns was

inspired to create the picce when an artist friend casually

remarked that Leo Castelli (a famous art dealer) could sell

beer cans, if that was all he had to sell. In response, Johns

cast a pair of cans Standing on a pedestal, and painted them

(somewhat crudely) with the familiar and mundane “Bal-

lantine Ale” logo. As with Duchamp and Lichtenstein,

John’s expression was in the editing of popular icons, in their

transformation, and in the very act of exhibiting them.

In the minds of many, the acme (or nadir) of referential

art was achieved when, in the early 1960s, Andy Warhol

exhibited mechanical enlargements of Campbell Soup can

labels —— images as familiar and banal as any that could be

imagined. See Appendix F. One critic wrote that, in doing

so, Warhol had “liquidated the century-old tension between

the serious artist and the majority culture. R. Hughes, The

Rise of Andy Warhol, in Art After Modernism: Rethinking

Representation at 54 (B. Wailis ed. 1984). Whatever one

may think of Warhol’s soup cans, or of Lichtenstcin’s

comic-strips lifted from a widely recognized genre of famil-

lar imagery, there can be no question that such expression

played an important part in a valid and valuable creative

dialogue.

That dialogue continues to this day. In the 1980s, theories

of modernism and post-modernism were debated in the ficlds

of art, architecture, music, literature and even legal scholar

ship. Among visual artists, the dialogue continued (and

continues) to center around questions regarding originality,

and is manifest in schools of art that continue to reference

“found” images from the popular culture

In 1990, the Museum of Modern Art in New York

mounted an exhibition, entitled “High & Low,” that explored

the artistic tradition described briefly above The show,

which traveled to Chicago and Los Angeles, was widely

hailed as one of the most important of the decade. In an

accompanying book of the same name, Kirk Varnedoe,

curator of paintings and sculpure at the Museum of Modern

Art and the curator of the show, surveyed what he referred to

as “one of the most important movements of the twentieth

century.” See High & Low, supra. The show began with the

work of Marcel Duchamp. It ended with Jeff Koons

B. Jeff Koons

As noted by both the trial court and the Court of Appeals,

Jeff Koons is an internationally known and highly controver-

sial artist. His work has been exhibited in one-man shows

throughout the country, and he is represented in the most

prestigious museums and collections in the world. Koons’

work has been the subject of innumerable books, catalogs,

and articles.

The controversy surrounding Jeff Koons flows primarily

from his “thumb-in-the-eye” approach to received models of

artistic Creation. Koons is perceived by many as a huckster,

a salesman, a semi-professional celebrity. He has publicly

eschewed romantic notions regarding the artist as divinely

inspired creator working outside the realm of commerce, just

as his work has eschewed modernist ideals of art as somehow

divorced from banality and commonality. His work (and his

views) have been characterized as profoundly cynical, and

ultimately nihilistic, by some. See R. Hughes, Nothing If Not

Critical at 123 (1990). Others have described his work as

among the most daring, challenging and important of the

1980s. See, e.g., High & Low, supra, at 392-98. In short,

Koons’ work (and his personality) have inspired reactions

from adoration to revulsion. They are virtually impossible,

however, to ignore.

Koons first came to national attention in the early 1980s

when, in the tradition of Duchamp (among others), he ex-

hibited existing objecis such as industrial vacuum cleaners.

The “displaced” object was, by then, a venerable artistic

genre; Koons took the next step by displaying objects that

were “uncharged” -— “they didn’t have the thrill of the for-

bidden or the appeal of the overlooked, just the drudge-like

presence of the ignored.” High & Low, supra, at 393.

In 1986, Koons created what is probably his best-known

sculpture, entitled Rabbit. See Appendix G-1. Starting with

a cheap inflatable dime-store toy rabbit, see Appendix G-2,

Koons exploded it to nearly four feet in size, and had it cast

my:

in highly polished stainless steel. In one sense, Rabbit is no

more than a slavish copy of a widcly recognizable type of

image from the pop culture. At first glance, it bears none of

the “artistic” qualities upon which notions of romanticism or

modernism rely; it does not reveal the “hand of the artist.”

In that, it is more in the tradition of Duchamp’s exhibiting a

ready made object. Upon closer inspection and reflection,

Rabbit reflects a whole range of transformational, or “ar-

tistic,” choices. Its size, and particularly its medium, evoke

a response in the viewer that is vastly different from that

experienced upon encountering the referenced toy. Rabbit is

unquestionably funny. At the same time, its coldness and

hardness, coupled with its intimidating, hovering presence,

renders it ultimately horrifying. There is no question but that

in creating Rabbit, Koons “copied” — in some sense — the

dime-store toy. Yet, by transforming a “cute bunny” in the

way he did, he added significantly to the discourse which has

been at the heart of modern and post-modern art for more

than half a century.

By 1988, Koons had completed a body of work, including

the sculpture String of Puppies, that he exhibited at the

Sonnabend Gallery under the tithe “Banality Show.” The

show was a sensation; applauded and reviled in the press and

by the public. Kirk Varnedoe, curator of the Museum of

Modern Art, has described it as follows:

“In late 1988, Koons managed to do something that

most people thought was no longer possible. He

shocked them. ... Koons’ figurines were shocking

because of the way they looked. They were

nightmarish — devil dolls, in which the insipid

language of the cartoons’ over-accentuated con-

tours and biscuit glazes was suddenly made hard

and staring. The contours of each piece_were as

chubby as a Disney drawing, but glacially hard —

like Muppets which had just seen the Medusa.

... The desire to make newly imagined things look

Vitiated and secondhand seemed to express a

preference for death over life, and even in a weary

lime this remained shocking.... It is that same

self-protecting morbidity, merged, in this case,

with a cheerful entrepreneurial busyness and a

Strangely ingratiating humor, that radiated from all

of Koons’ work. For once, the word postmoder-

nism seemed meaningful — dead on.”

High & Low, supra, at 393-98. As with Rabbit. the twenty

Sculptures in the “Banality Show” were transformed versions

of existing images from the popular culture. Some included

well-known “pop” characters such as the Pink Panther.

Michael Jackson and Odie (the dog from the Garfield

comic-strip). Others referenced well-known images, trans-

formed in such a way as to alter considerably the viewer's

response. Yet others used as their source matcrial images of

a genre which was well-known and recognizable, although

the particular images may not have been familiar. In that

sense, the work was in the tradition of Lichtenstein, who

relied on knowledge of a type of comic-strip art, rather than

the particular comic-strip panel that he referenced.

String of Puppies was among this latter group of scu!p-

tures. It relied on and referenced an image of a type which

was immediately recognizable. It challenged and satirized

the sort of “charming,” “cute,” ‘romantic,” “sentimental”

picture with which we are all familiar, and which fills the

racks of gift shops. As was true of Rabbit, the response

evoked by String of Puppies is vastly different from that

evoked by its source. Rogers’ photograph — and other

pictures of that ilk — inspire a sort of sentimentality; the

viewer is likely to respond with such an emotion, and with

little more. The photograph is flat, and playful; it is real. It

evokes thoughts about real people and puppies, about the

moments before and after the picture was taken. One need

~ e

not quarrel with the quality or the vaiue of Rogers’ photo-

graph to admit that it is of a particular and recognizable type,

intended to evoke a given response.

String of Puppies evokes an entirely different feeling in

its viewers. It is big; it is garishly and unnaturally colored;

it exists not in a real world, but completely out of context.

The limbs of the subjects simply end where the pedestal on

which it stands begins. The viewer cannot pretend, as with

the photograph, that there is more outside the frame. ‘These

people, and their grotesque puppies, are all there are. Then

there are the characters themselves, bizarre parodies of

smiling people and playful puppies. They appear neither

happy nor playful. The faces of the people are frozen in

twisted expressions that might appear natural if one could

consider the prior or subsequent moment, but that are re-

duced to the grotesque by Koons’ editing. The puppies, once

cute and playful, have become a string of mysterious electric

blue puppy-like objects with flat white stylized noses. The

hardness of the moment is matched by the hardness of the

object. The people and their dogs are no longer soft and

pliant — they have become as wooden as the material in

which they are portrayed. Through his manipulation, Koons

has transformed a genre of image in such a way as to com-

ment upon it forcefully, and to require his viewer examine it

anew. It is a cheeky and cynical brand of commentary, and

one which may be thought to denigrate a type of imagery that

many find pleasurable. But, in the end, that denigration is

what shocks, and causes a response.

The preceding description of Jeff Koons’ work, and of the

tradition from which it finds context, is not intended to

Suggest that his oeuvre is any more deserving of fair use

protection than any other. Neither is it intended to suggest

that well-known artists are incapable of infringing copy-

rights, or that their activities are to be judged with any

greater level of deference than those of lesser-known artists.

If the creation of a work entails an act of legitimate artistic

-10-

expression, then, whether or not one approves of the work,

the artist’s right of expression ought at least to be balanced

against the commercial exploitation rights vested in the

creator of the underlying work.

One need not adhere to Koons’ particular aesthetic in

order to deem his work Icgitimate artistic expression, worthy

of some measure of protection under fair use provision of the

Appeals, that a jury presented with evidence about Koons’

work and the tradition from which it derives might find that

it constitutes an act of serious artistic expression. In light of

the last seventy years of modern and post-modern art, it is

impossible to conclude as a matter of law that Koons, in

creating String of Puppies, did no more than copy Rogers’

photograph for commercial purposes in an attempt to convert

Rogers’ expression for his own pecuniary gain.

ARGUMENT

The tension between the two important socictal values

implicated in this case is manifest!’ On one hand, artists and

authors must be protected with respect to their copyrights in

Original works, if the creation and dissemination of such

works is to be encouraged. On the other hand, this nation’s

long-standing tradition of artistic freedom requires that

artists be free to criticize and comment on the world and the

culture around them, including imagery, language and other

works which might themselves be protected.

Balancing two such important cultural valucs is, ad-

mittedly, a difficult task. Yet in the past, this Court has

sought to strike that balance by respecting both “the interests

of authors and inventors in the control and exploitation of

their writings and discoveries on the one hand, and society’s

competing interest in the free flow of ideas, information, and

commerce on the other hand.” Sony Corp. of America v.

Universal City Studios, Inc.,, 464 U.S. 417, 429 (1984).

In instances when those competing values have clashed

head-on, this Court has given primacy to the societal interest

- $4»

in creativity and free expression. Protection of a copyright

owner’s property rights is “a secondary consideration,” td

(quoting United States v. Paramount Pictures, lac., 334 U.S

131, 158 (1948)), and subservient to “[t]he primary objective

of copyright... [which] is to promote the Progress of Sci

ence and the useful Arts.” Feist Productions, Inc. v. Rural

Telephone Service Co., 111 8. Ct. 12&2, 1290 (1991). - The

fair use doctrine, in particular, provides an “equitable rule of

reason,” Sony Corp. of America v. Universal City Studios,

Inc., 464 U.S. 417, 448 (1984), the purpose of which 's to

“avoid rigid application of the copyright statute when, on

occasion, it would stifle the very creativity which the law ts

designed to foster.” Stewart v. Abend, 495 U.S. 207, 236

(1990) (quoting Jowa State University Resear h Foundation,

Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir

1980)

Artists have long taken comfort, and felt some measure ol

security, in this Court’s respect ior the value of their creative

expressions. Before the Court of Appeals’ decision in this

case was handed down (and widely publicized), professional

artists and art students could fairly believe that their sin

cerity of purpose, and honest intent to comment on and

criticize the world around them, would at least be considered

in balancing their rights against the property rights of others

Since that decision was rendered, many artists working in

this important genre have perceived that the rules have

changed, that referential art is always dangerous, and that

selling referential art for moncy is per se violative of the

A. The Second Circuit Erred In Holding As A

Matter Of Law That Koons’ Work Was A

Copy Of Rogers’ Photograph.

In holding as a matter of law that Koons’ sculpture was a

“copy” of Rogers’ photograph within the meaning of the

question whether Koons’ act of transformation was itsell a

significant act of artistic expression such that his work could

not fairly be characterized as a mere “copy,” and adopted an

approach which conflicts with that of other circuits, Which

have held that such decisions are particularly inappropriate

for summary judgment. See, e.g., Twentieth Century-Fox

Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir. 1983).

With respect to the issue of copying, the Court indulged in

an ad hoc examination of the Superficial similaritics of the

two works — without making any allowances for their dif-

ferences, or for the creative expression embodied in Koons’

sculpture. There was no question that Koons’ made a num-

ber of important artistic choices in the process of transform-

ing the photograph into a sculpture, including the addition of

unnatural colors, the changing and addition of certain props,

the changing and distorting of scale, the choice of material

and style of workmanship, etc. Neither was there any dispute

that essential elements of Rogers” expression, such as color

(or lack of color), light and shadow, contrast and back-

ground, were not used by Koons. Respected experts submit-

ted affidavits in the trial court concluding that in no sense

could Koons’ sculpture be deemed substantially similar to

Rogers’ photograph. Nevertheless, the trial court concluded

— without even troubling to view the sculpture — that there

Was no material fact issue “in light of the overwhelming

Similarity to the protected expression to the original work,”

and the Court of Appeals affirmed that finding.

The Court of Appeals erred by failing to consider the

transformative process embodicd in, and the expressive

elements of, Koons’ work. At the very least, a jury should

have determined whether Koons copied Rogers’ work in such

a Way as lo convert to himself the value of Rogers’ artistic

expression, or whether he merely used the existing image as

a jumping off place for his own artistic expression. The

Court of Appeals’ approach to the question of copying would

render actionable much of the work of each of the artists

discussed in the previous section. If courts were to have

-]3-

focused solely on areas of similarity, and ignored critical

differences (as well as critically different purposes), we

might today be deprived of the products of an artistic tradi-

tion which has fostered valuable commentary, criticism and

dialogue within our socicty.

B. Koons’ Work Is A Fair Use Of Rogers’

Photograph.

Section 107 of the Copyright Act, 17 U.S.C. § 107, pro-

vides that the “fair use” of a copyrighted work “for purposes

such as criticism [or] comment... is not an infringement of

as a means of allowing artists to “use” prior works in the

creation of valuable new works. See, e.g., Harper & Row,

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549-50

(1985). It bears repeating that the doctrine’s very purpose is

lo avoid application of the copyright laws in such a way as

might stifle the creativity which they were intended to foster

Stewart v. Abend, supra, 495 U.S. at 236

In accordance with its open-ended purpose, the language

Of Section 107 is itself open-ended and inclusive. The stat

ule instructs that fair use “includ/es] ... use... for pur

poses such as criticism, comment, news reporting, teaching

., SCholarship, or research.” i07 U.S.C. § 107 (emphasis

supplied). It goes on to direct that, in determining whether a

particular use is fair, “the factors to be considered shall

include” four enumerated factors, including (1) the purpose

and character of the challenged work, and (2) the effect of

the use upon the value of the copyrighted work. Professor

Nimmer has noted that the statutory framework has an

“almost infinite elasticity,” 3 M. Nimmer & D. Nimmer,

The Second Circuit’s categoric approach to Koons’ fair

use defense ignores the legislative mandate inherent in Sec-

tion 107, and threatens seriously to chill the types of expres-

sion that the statute was intended to protect. As discussed

below, the Court decided the first factor by focusing

ehd<

exclusively on the fact that Koons sold three copics of String

of Puppies for money. Having concluded from that fact that

the purpose of the work was “primarily for profit-making

motives,” the Court then held as a matter of law that String

of Puppies could not be fairly characterized as commentary

or criticism. Finally, the Court concluded that future market

harm to Rogers could be presumed based solely on its earlier

finding that Koons’ motive had been primarily commercial.

The import of the Second Circuit’s holding is that the fair

use doctrine will not serve to protect works of art that are

sold because: (a) their purpose may always be deemed com-

mercial; and (b) such commercial purpose creates a presump-

tion of economic injury to the copyright holder. Such a

result ignores the plain language of Section 107.

C. Koons’ Work Is In The Nature Of Creative

Expression Rather Than Commercial

Exploitation.

In an oft-repeated dictum, this Court has stated that the

“crux of the profit/nonprofit distinction is not whether the

sole motive of the use is monetary gain but whether the user

Stands to profit from the exploitation of the copyrighted

material without paying the customary price.” Harper &

Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,

562 (1985). On the facts of that case, the Court’s statement

served properly to balance the competing goals of the

particular. Its application to the facts of this case had the

opposite effect.

Harper & Row involved the publication by The Nation

magazine of excerpts from the unpublished memoirs of

Gerald Ford, first-time publication rights in which had been

licensed to Time magazine. This Court correctly noted that

The Nation could have (but chose not to) bid for first-time

rights. Instead, it purloined a copy of proofs of the book and

“scooped” Time by publishing first. In rejecting The

Nation’s argument that its primary motive was not

; ae.

commerce, but news reporting, this Court used the

“customary price” language quoted above.

In Harper & Row, this Court focused on evidence of

practice in the publishing industry to supply the “custom” to

which it referred. There is no such custom in the field of

fine arts; certainly, none was evidenced in the record before

the trial court. Thus, in the field of visual arts, the

“customary price” concept becomes circular: Once a court

decides that an artist’s referential work is commercial

(because he or she did not purchase rights), such uses are as

a practical matter prohibited unless artists negotiate licenses

from copyright holders.

If a “custom” of requiring payment for referenced images

in the field of fine arts is created as a result of this case, it

will significantly chill artistic expression. For, whereas

magazine publishers can make economic decisions about

whether to pay for first publication rights in copyrighted

books, only a handful of artists are in a position even to

consider purchasing rights in the material they criticize and

comment upon. A few such artists —— including Koons and

Johns — may today be in a position to do so, But even those

few were not always so situated, they might never have

become the artists they are today if, when starting out (or

while in art school), they had been required to purchase

rights in the imagery they referenced and commented upon.

Moreover, such a rule would restrict the underlying works

upon which artists may comment to those whose owners

allow them to do so. In situations where an artist seeks to

lampoon or criticize an existing work, it will be the rare case

in which the holder of the copyright in the work consents ——

even for a fee. See Fisher_v. Dees, 794 F.2d at 437

(“Parodists will seldom get permission from those whose

works are parodied.”). When rights can be purchased, the

price may be expected to include some component repre-

senting a “criticism fee,” notwithstanding the fact that the

-16-

holders for damage caused by critical commentary. See

Consumers Union Of the United States, Inc. v. General

Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983), cert.

denied, 469 U.S. 823 (1984). In sum, the judicial creation of

a “custom” requiring the purchase of a license as a condition

to crilicizing or commenting upon existing works is antitheti-

cal to the very purpose of the fair use doctrine, which is to

encourage the free exchange of ideas through commentary

and criticism.

D. Koons’ Work Is A Parody And Satire Of

Rogers’ Photograph, And Of Its Genre.

Courts have long recognized that affording satire and

parody broad latitude as fair uses is “a means of fostering the

creativity protected by the copyright law.” Warner Brothers,

v. American Broadcasting Cos., 720 F.2d 231, 242 (1983);

see Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); Walt

Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir.

1978). Just as the drafters of Section 107 explicitly recog-

nized the value of commentary and criticism, judges have

treated parody and satire as art forms to be encouraged. See,

e.g., Elsemere Music, Inc. v. National Broadcasting Co.,.482

F.Supp 741 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980).

The lower courts are in conflict as to whether parody

qualifies for fair use protection only where that which is

copied is itself the subject of the satire, or whether the de-

fense applies as well to satires of general societal mores.

Compare, e.g., Walt Disney Productions v. Air Pirates, 581

F.2d 751, 758 n.15 (9th Cir. 1978) (work referenced must be

an “object of the parody”) and Metro-Goldwyn-Maver, Inc. v.

Showcase Atlanta Coop. Prods., Inc., 479 F.Supp 351 (N.D.

Ga. 1979) (in order to qualify as parody, work must “make

some critical comment or statement about the original work”)

with Elsemere Music Inc. v. National Broadcasting Co., 482

F.Supp 741 (S.D.N.Y. 1980), aff'd, 623 F.2d 252 (2d Cir.

1980) (“issue ... is whether the use in question is a valid

- ao

Salire or parody, and not whether it is a parody of the copied

[work]”).

In this case, the Court of Appeals held that a challenged

work qualifies for fair use protection only if the copied work

is, “at least in part, an object of the parody.” 960 F.2d at 310.

It acknowledged that Koons worked in a tradition dating

back to Duchamp that sought to incorporate common images

“into works of art in order to comment critically both on the

incorporated object and the political and economic system

that created it,” and explicitly conceded that String of

Puppies “is a satirical critique of our materialistic society.”

960 F.2d at 310. Yet, the Court of Appeals found that the

parody/satire defense was inapplicable as a matter of law

because it had “difficult{y] discerning any parody of the

photograph ‘Puppies’ itself.” /d.

In light of the Second Circuit’s ruling, the applicability of

the parody/satire defense is altogether unclear to in-

numerable artists whose work references imagery from the

culture around them. Moreover, the Covit’s conclusion that

Koons’ work was not protected notwithstanding its conceded

Status as a Satirical critique of our socicty is troubling, and is

at odds with the conclusions of other courts. Finally, the

Court’s finding that it was “difficult to discern any parody of

[Rogers’] photograph” is inappropriate on summary judg-

ment, and almost certainly wrong as a matter of fact.

E. Koons’ Work Had No Effect On The

Economic Value Of Rogers’ Right To

Exploit His Photograph.

Finally, the Court of Appeals took it upon itself to resolve

a factual issue regarding the economic effect, if any, caused

by Koons’ use of Rogers’ photograph. If, indeed, Koons’

sculpture were found to have deprived Rogers of his eco-

nomic rewards of authorship, such a finding might militate

against a finding of fair use. But the evidence in that regard

was, at best, conflicting and, in fact, provided a basis for

finding that no such effect was reasonably likely to occur.

- +8.

The evidence before the trial court took the form of con-

flicting affidavits concerning whether there was any estab-

lished market for rights to make sculptural renditions of

existing photographs such as Rogers’. The Court of Appeals

found that it was “not implausible” that another artist would

have been willing to purchase rights to produce a sculpture

like Rogers’ photograph, and that such a market had been

reduced. 960 F.2d at 312.

The Second Circuit’s approach was flawed in at least

three critical respects. First, and most obviously, the court

made factual findings, as is clear from its language. Second,

and more fundamentally, the court departed from this Court’s

precedent, which requires a showing by “a preponderance of

the evidence that some meaningful likelihood of future harm

exists.” Sony Corp. of America v. Universal City Studios,

Inc., supra, 464 U.S. at 451 (emphasis supplicd). The reason

for the rule is self-evident: “A use that has no demonstrable

effect upon the potential market for, or the value of, the

copyrighted work need not be prohibited in order to protect

the author’s incentive to create.” /d. at 450 (emphasis

supplied).

The Court of Appeals’ “not implausible” test turns that

rule on its head. A copyright owner may always be expected

to hypothesize some way in which his or her work might

conceivably have been exploited, and if the hypothesis is not

overly “implausible,” economic injury could always be found

using the Court of Appeals’ test. Such an approach,

however, fails to respect the value of creative expression

reflected in Section 107, and would do serious harm.

The Court of Appeals’ approach also failed to recognize

one of the essential attributes of parody and satire: Works

that criticize or lampoon an underlying work rarely compete

with them in the market, and thus rarcly implicate the con-

cerns of the copyright laws. Consumers Union of the United

States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d

Cir. 1983), cert. denied, 469 U.S. 823 (1984); see Light,

» 19.

Parody, Burlesque, and the Economic Rationale for

criticism may cause harm to an underlying work, such injury

is not of the type protected against by the copyright laws. In

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the Ninth

Circuit stated:

“Copyright law is not designed to stifle critics. . .

Accordingly, the economic effect of a parody with

which we are concerned is not its potential to

destroy or diminish the market for the original ——

any bad review can have that effect — but rather

whether it fulfills the demand for the original.

Biting criticism suppresses demand; copyright

infringement usurps it.”

794 F.2d at 437-38. There was simply no basis for the Sec-

ond Circuit to conclude that Koons’ sculpture usurped the

market for anything that Rogers owned. If Rogers wishes to

license others to make sculptural renditions of his photo-

graph, he may do so. It is inconceivable that Koons’ creation

of idiosyncratic and grotesque parodies, which sold tor more

than $100,000 each, could interfere with Rogers’ rights, or

with the value of such a potential use.

CONCLUSION

The opinion of the Court of Appeals for the Second Cir-

cuit has created great uncertainty with respect to the ap-

plicability of the fair use doctrine to works of visual art that

comment upon or criticize existing imagery. As described

above, referential art has played a vital role in the history of

artistic expression in this century, and has been a catalyst for

debate and dialogue in many creative disciplines. Visual

artists have traditionally taken comfort in the protections

afforded to such commentary and criticism by means of the

fair use doctrine, and by the prior decisions of this Court.

Such comfort has been destroyed by the promulgation of a

rule that ignores the expressive value of the work being

judged, and holds that art ceases to be art when it is sold.

- 20-

The Court of Appeals has cast serious doubt on artists’

abilities to create and sell important works of artistic expres-

sion, the value of which have long been explicitly recognized

by this Court. A significant chilling effect is already being

felt as a result of the lower court’s widely-publicized deci-

sion, and will continue to be felt unless this Court reviews

that decision on a writ of certiorari.

For the foregoing reasons, amicus curiae National Artists

Equity Association respectfully submits that this Court

should grant the petition for a writ of certiorari to the Court

of Appeals for the Second Circuit.

Dated: September 11, 1992.

Respectfully submitted,

LAWRENCE C. BARTH

Counsel of Record

MUNGER, TOLLES & OLSON

Attorneys for Amicus Curiae

NATIONAL ARTISTS EQUITY

ASSOCIATION

APPENDIX A

APPENDIX B

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.