# Amicus Curiae Brief — Koons v. Rogers

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1154%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 934

## Text

D
49 ~
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SL No. 92-297
S&
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*

N

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

1]

15, 16, 19
- =a + Seo
1]

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
Copyright (1992)

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

2

(oe)

passim

ia

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

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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

oo

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.

re

... 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

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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
Copyright Act. One need only admit, unlike the Court of
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
Copyright Act.

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
Copyright Act, the Court ignored compelling evidence on 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
copyright.” This Court has interpreted the fair use doctrine
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,
Nimmer on Copyright § 13.0S5[A][5] at 13-102.6 (1992).

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
copyright scheme generally, and the fair use doctrine in
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
copyright laws are not intended to compensate copyright

-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
Copyright, 11 Conn. L. Rev. 615 (1979). To the extent that
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.

ee

- 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1154%3A5. Public record. Not legal advice.