Blanch v. Koons, 467 F.3d 244, is a copyright case decided by the United States Court of Appeals for the Second Circuit in 2006. Fashion photographer Andrea Blanch sued appropriation artist Jeff Koons for copyright infringement after he used an image of a woman's lower legs taken from one of her photographs in a collage of his own. Koons claimed fair use, arguing he had transformed it sufficiently from its original purpose through his reuse. It is considered a significant case in addressing the latter issue.
Blanch brought the action in the United States District Court for the Southern District of New York after seeing the legs from her image, shot for a 2000 article in Allure, used in Niagara, a collage by Koons exhibited at the Guggenheim Museum in 2001, without her permission. Judge Louis Stanton held for Koons in 2005, finding that three of the four factors used to determine fair use were favorable to Koons and the other one was neutral. On appeal, the Second Circuit affirmed the following year, with Judge Robert D. Sack writing for a unanimous panel that found Koons's fair-use claim even stronger., hereafter Blanch II. Judge Robert Katzmann, in a concurrence, criticized the court for attempting to assert broader principles rather than limiting its decision to the specific facts of the case, which he believed the better approach.
The case has been contrasted with another suit against Koons 15 years earlier, in which he was found liable by the Second Circuit for infringing a photograph with a sculpture based on it. At that time transformative use, a concept developed in a law review paper by Judge Pierre Leval, then sitting on the Southern District, had not become widely understood and accepted in copyright litigation outside cases involving parody, the context in which the U.S. Supreme Court had accepted it in 1995's Campbell v. Acuff-Rose Music, Inc. Blanch was one of several cases in the mid-2000s where judges of the Southern District and Second Circuit, who hear many copyright cases, reversed that trend and began more broadly accepting transformative use as a defense to infringement claims.
Scholarly commentary has focused on the deference the case showed Koons's stated intent compared to the earlier case. It has also been seen as accepting a postmodern understanding of fair use which gives equal weight to the context of the use and its reception, along with the reuser's intent, in determining whether a use is sufficiently transformative.
Background
Fair use and transformative use
Fair use, the legal doctrine that allows those who do not own the copyright on a work to use it (or at least portions thereof) under certain circumstances, dates to early 18th-century England. It was first recognized by an American court in 1841, with Folsom v. Marsh, a case over a published volume of George Washington's letters in what is now the District of Massachusetts, where Joseph Story, at the time also a justice of the U.S. Supreme Court, recognized its importance to the public good even as he ruled against the defendant claiming it. He identified three factors on which a defendant might prevail when accused of infringement: the "nature and objects of the selections made", the "quantity and value of the materials used", and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work"
Fair use remained, on those grounds, a purely judicial construction until 1978, when Congress codified them into law with the Copyright Act of 1976. Section 107 formally recognized fair use, based on case law to that point, providing for the same factors Story identified, with the first one split into "the purpose and character of the use" and "the nature of the work". In an influential 1990 Harvard Law Review article, "Toward a Fair Use Standard", Judge Pierre Leval, then sitting on the Southern District of New York, which hears many copyright cases due to the many media companies located in Manhattan, offered guidance on how to interpret the statute based on cases decided under it.
Cases deciding the first factor had turned on a concept Leval identified as transformative use: "[It] must employ the quoted matter in a different manner or for a different purpose than the original ... [using it as] raw material, transformed in the creation of new information, new aesthetics, new insights and understanding." He found this to be consistent with the Constitutional rationale for copyright. Four years later, in Campbell v. Acuff-Rose Music, Inc., a case brought over 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman", the Supreme Court cited Leval's paper and recognized transformative use as something courts could consider in the fair use analysis.
The Southern District had begun considering transformative use claims even before Campbell, in cases involving photocopying. In Basic Books v. Kinko's Graphics Corp., Judge Constance Baker Motley rejected the claim that the defendant chain of copy centers was transforming the plaintiff publishers' works by creating course packs for college classes as the kind of "mere repackaging" Leval had explicitly excluded from transformative use., hereafter Texaco I In 1993 the concept was acknowledged at the appellate level in Twin Peaks Productions v. Publications International Ltd., where detailed plot summaries of episodes of a television show were likewise held insufficiently transformative since they were not used as the basis for commentary and could reasonably serve to substitute for watching the show., hereafter Texaco II Leval also rejected the transformative use claimed by the defendant in deciding American Geophysical Union v. Texaco at trial, since its photocopying for the library at its research center "supersede[s] the original and permit duplication, indeed, multiplication ... This kind of copying contributes nothing new or different to the original copyrighted work. It multiplies the number of copies."Texaco I, 11-13 Leval also held that since the publishers had created a system to license bulk photocopying, and Texaco had other alternatives if it found that system unsatisfactory, the company's copying was harming the market for the original work.Texaco I, 17–21Blanch II, 251–53
On appeal the Second Circuit affirmed Leval, although with some modifications. Jon Newman, then the circuit's chief judge, who had also written the Twin Peaks opinion, wrote that the transformative use inquiry "assesses the value generated by the secondary use and the means by which such value is generated. To the extent that the secondary use involves merely an untransformed duplication, the value generated by the secondary use is little or nothing more than the value that inheres in the original."Texaco II, 920–25 Newman also affirmed Leval's holding that the existence of a market for the copied articles made Texaco's fair use claim less tenable,Texaco II, 926–32 logic criticized as circular both by dissenting judge Dennis JacobsTexaco II, 932–41 and later academic commentators, who agreed with Jacobs that that logic created a situation where copyright holders could—and did—almost always prevail if they could show the slightest possible market existed.
For the most part the Second Circuit was stingy with transformative use. The use of a large poster of artist Faith Ringgold's work in the background on the set of Roc, a Seinfeld trivia quiz book, and purely decorative eyewear used in a clothing advertisement (in an opinion written by Leval after he was elevated to the Second Circuit) were found not to constitute transformative use. But a parody of Annie Leibovitz's famous Vanity Fair cover photo of a naked and pregnant Demi Moore used as a movie advertisement was held transformative enough to be fair use.
Appropriation art
In the latter decades of the 20th century, pop artists like Andy Warhol and Robert Rauschenberg reacted to consumer culture and the increasing amount of mass-produced imagery in the media, particularly advertising, by using those images in their own art, sometimes as their own, a practice termed "appropriation art". In two instances this led to lawsuits. Warhol settled a 1966 claim brought by the photographer whose image he had used as the basis of his Flowers Series. Fourteen years later Rauschenberg similarly settled with a photographer whose work he had used; until then he had argued fair use with arguments similar to those now accepted as transformative use.
Jeff Koons became prominent in the art scene during the 1980s, relying on repurposing the work of others, likewise drawing suit. A sculpture recreating a postcard that Koons had found and torn the copyright notice off was held not to be fair use by the Second Circuit Court of Appeals in Rogers v. Koons, since it was so similar to the original as to make it "difficult to discern" the parody Koons claimed his work was. He lost at trial the next year over his unauthorized use of Odie from the Garfield comic strip. Neither case considered transformative use; they were decided after Leval's paper but before Campbell.
Underlying dispute
In 2000, Andrea Blanch, a veteran fashion photographer whose work had been published in many magazines and books of her own, was commissioned by Allure magazine to take pictures that would illustrate an article about glittery nail polish. While the magazine's creative director suggested the model to use, the brand of nail polish and the jewel-encrusted silk Gucci sandals she wore, Blanch chose the camera and film and lit the scene based on her years of experience. She came up with the idea to pose the model's feet, her legs crossed, on a man's legs in an airplane seat, to give it a slightly erotic sensibility. A picture of the model's feet in tight closeup was used in the magazine's July issue of that year; Blanch was paid US$750Blanch II, 247-49 ($ in ).
That same year, Deutsche Bank and the Guggenheim Museum commissioned a series of works for $2 million ($ in ) from Koons, whose work, controversial within the art world at the time of Rogers, had since become more accepted and commanded higher prices from buyers. Koons responded with seven large () canvases, the "Easyfun-Ethereal" series, all of them collages of images meant to comment on how basic human appetites are mediated by mass-produced images. The fourth in the series, Niagara, was topped with four sets of women's lower legs in high-heeled shoes appearing to dangle down from the top of the frame, above a backdrop showing Niagara Falls, amid images of desserts. Second from left among the legs were those from Blanch's photo, cut out from their background.
The "Easyfun-Ethereal" works were exhibited first at the Deutsche Guggenheim in Berlin during 2001, and later that year at the main Guggenheim in New York. While at the latter, Blanch decided to take a look despite not being particularly interested in Koons's work. When she saw legs in Niagara, she was flattered at the artist's choice of her photo even though she had not granted permission or been notified. She did not consider suing him until a friend of hers who had encountered Koons at a party recounted the artist's fraught reaction when she had told him about it. Blanch realized that Koons had knowingly appropriated her image without asking, and brought suit alleging copyright infringement.
Litigation
District court