Koons’ Collage Constitutes Continuing Quest

Jeff Koons has contributed mightily to measuring the metes and bounds of what constitutes ‘fair use’ in making unauthorized use of someone else’s copyrights. He did it with images of puppies; he did it with celebrity photographs; and now, he’s done it again with ladies legs.

To begin at the beginning, Andrea Blanch, a professional photographer, took a series of photographs of women’s legs that were used in the August 2000 issue of “ALLURE” magazine.

Jeff Koons, in fulfilling on a commission from the Guggenheim Foundation and Deutsche Bank, elected to scan a portion of Blanch’s legs; and, then Koons took the digital scan of Blanch’s work and digitally superimposed those Blanch images against a background of pastoral landscapes. The resulting image is said to comprise to a ‘collage’ which was then reduced to templates for painting upon billboard sized canvases and entitled “EasyFun-Ethereal”. The Koons’ collage (with Blanch’s work embedded) was exhibited in 2000 and 2001 in Berlin and New York City.

Blanch sued; and, Koons succeeded at the trial court level on his defense of fair use. Blanch appealed; and the Second Circuit had a long look at the picture. After the court found that the first and second factors of the four-part fair use analysis demonstrated that the collage was both transformative and constituted social commentary. With ‘transformative’ recognized, it was not surprising that fair use was found, but it didn’t help when Blanch admitted that the use of her photographs did not harm her career, the market for her work or the value of the work in the market place. ( No. 05-6433-cv, 2nd Cir.; 2006)

Koons must be appreciated for his fondness for incurring legal fees. He is a Don Quixote of ‘Fair Use’ who has quite a track record for galvanizing fine copyright case law. Maybe there is a Guggenheim grant funding that quest on which Koons has led so many lawyers and students. Not surprisingly, Koons had his own team of lawyers; and the Guggenheim Foundation had their own team of lawyers; Deutsche Bank had their own team of lawyers…. and giving a grant to Koons begins to look like that old PRELL commercial for lawyers’ full employment.

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