Is it Fair Use?
In yet another case involving the fair use defense to claims of infringement of a copyrighted photograph, a recent decision in the United States District Court of the Southern District of New York,
The court made the following factual determinations:
The plaintiff's photograph, entitled Silk Sandals by Gucci, shows the lower part of a woman's bare legs (below the knee) crossed at the ankles, resting on the knee of a man apparently seated in an airplane cabin. She is wearing Gucci sandals with an ornately jeweled strap. One of the sandals dangles saucily from her toes. As a whole, the photo conveyed a sense of sleek elegance, with faintly erotic undertones, and was designed to illustrate the metal-flecked polish on the model's toenails. It was published in Allure Magazine as part of a six-page article about metallic makeup.
Koons copied only the model's legs, feet and Gucci sandals as one component of his painting entitled Niagara, which was one of seven works commissioned by defendant Deutsche Bank and exhibited by defendant Guggenheim Foundation. Koons did not copy the background or any of its details. The legs are hanging vertically with three other pairs of legs and feet, roughly parallel to each other.
Koons explained his selection of the legs in the photo (rather than just painting different legs) as an "iconic representation as presented to the public in ubiquitous media". His paintings, he said, are not about objects or images he might invent, but about how we relate to the things that we actually experience. Therefore, he had to use images from the real world, real things that are actually in our mass consciousness.
The court accepted this rationale as to intent and purpose. It also found that the painting's use of the copied elements - the crossed legs, feet and sandals - was different from their use in the photograph; and therefore did not "supercede" or duplicate the objective of the original. Rather, it was raw material in a novel context to create new information, aesthetics and insight. This type of use - whether successful or not - is a transformative use under the copyright law.
In particular, the court eliminated copying of the sandals since the photographer had no copyright on them, leaving only a woman's legs, crossed at the ankle. However, said the court, this was not sufficiently
Finally, the Court found that the painting was not a substitute for the photograph and was in no way competitive with it, since the market for the painting was one the photograph had no chance to capture.
The photographer had claimed, among other reasons, that the copying was not a fair use because Koons, on at least three prior occasions, had been found liable for willful copyright infringement. However, the Court disregarded these cases (at least for the liability analysis) since each claim of fair use must be decided on its own merits. Presumably, the Court would have considered this past conduct in determining damages if the photographer had won.
Some of you may recall my column in the September 2004 issue of StockPhotoNotes, which discussed the case in an earlier stage. At that time, the Court permitted the photographer to amend her complaint to add a claim for punitive damages, while stating it was not deciding the issue one way or another, but simply permitting the issue to be heard as the case moves forward. The Court now found it unnecessary to reach the other defenses raised concerning this availability of punitive damages, the statute of limitations, and lack of substantial similarity, since it dismissed the case on the fair use analysis. Therefore, we must await another day to continue the dialog on punitive damages under the Copyright Act.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
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