Niagara, 2000. Oil on canvas, 120 x 172 inches. Deutsche Guggenheim. [link]
This is a great encapsulation about the recent decision (Nov 2005) that reverses the damage done by Koons vs. Rogers, aka "String of Puppies" ca. 1988. John Koegel also happens to be my attorney; he helped me out of my 2004 scrape with Susan Meiselas over the painting I did based on a found fragment of one of her photographs. (Read the original blog post @ Rhizome). The two cases are similar in many ways.
Read the decision itself:
ANDREA BLANCH, Plaintiff, against JEFF KOONS, DEUTSCHE BANK, AG, and THE SOLOMON R. GUGGENHEIM FOUNDATION, Defendants Decision [PDF]
Here's a scan of a bad photocopy of the Gucci sandals AD photographed by Andrea Blanche, featuring the legs that Koons appropriated.
Jan. 19, 2006
KOONS WINS COPYRIGHT LAWSUIT
Jeff Koons has won one for "fair use." The neo-Pop artist, who famously appealed his 1988 String of Puppies copyright-infringement case all the way to the Supreme Court -- and lost -- has been dragged into court once again for copying another artist’s work. For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure magazine to illustrate an article on metallic makeup. Koons took the image of the legs and diamond sandals from that photo (omitting other background details) and used it in his painting Niagara, which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes.
In his court filing, Koons' lawyer, John Koegel, said that Niagara is "an entirely new artistic work. . . that comments on and celebrates society's appetites and indulgences, as reflected in and encouraged by a ubiquitous barrage of advertising and promotional images of food, entertainment, fashion and beauty."
In his affidavit in the case, Koons noted that it was important to use the photo from Allure, rather than painting a model’s legs himself. "My paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience. . . . Therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness." [emphasis mine]
In his decision, judge Louis L. Stanton of U.S. District Court found that Niagara was indeed a "transformative use" of Blanch's photograph. "The painting's use does not 'supersede' or duplicate the objective of the original," the judge wrote, "but uses it as raw material in a novel way to create new information, new esthetics and new insights. Such use, whether successful or not artistically, is transformative." [emphasis mine]
The detail of Blanch's photograph used by Koons, it seems, is only marginally copyrightable. Blanch has no right to the appearance of the Gucci sandals, "perhaps the most striking element of the photograph," the judge wrote. And without the sandals, only a representation of a women's legs remains -- and that is "not sufficiently original to deserve much copyright protection."
Blanch, a 20-year veteran of the photo world -- she started out as an assistant for Richard Avedon, and in 1998 published Italian Men: Love & Sex, a book of interviews and photographs -- told Artnet News that she had discovered Koons' use of her image by accident, during a visit to his 2002 exhibition at the Guggenheim Museum in New York. "At first I was flattered," she said. She soon came to a different conclusion after thinking about the situation. "I really believe that if the person is living, you have to ask permission!"
The battle is not over yet -- Blanch has filed an appeal. So far, her costs have been minimal; her lawyer has taken the case on a contingency basis. But if she loses, she may have to pay the defendants’ costs, and since she has sued Deutsche Bank and the Guggenheim along with Koons -- she claims that the two institutions which commissioned the work share responsibility for the alleged copyright violation -- the eventual bill could be rather large.