Blanch v. Koons, transformative appropriation art, and Fairey v. AP

It’s well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the Circuit in which the court hearing Shepard Fairey’s lawsuit against AP and Manny Garcia is pending) in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, “an accomplished professional fashion and portrait photographer,” unsuccessfully sued Jeff Koons for copyright infringement of a photograph she had shot entitled “‘Silk Sandals by Gucci’ (‘Silk Sandals’), [which] depicts a woman’s lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. Allure published ‘Silk Sandals’as part of a six-page feature on metallic cosmetics entitled ‘Gilt Trip.’” The court explained how Koons appropriated and used ‘Silk Sandals’ as follows:

Koons scanned the image of “Silk Sandals” into his computer and incorporated a version of the scanned image into [his painting entitled] “Niagara.” He included in the painting [pictured at left] only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from “Silk Sandals” are second from the left among the four pairs of legs that form the focal images of “Niagara.” Koons did not seek permission from Blanch or anyone else before using the image

Koons was paid $126,877 for “Niagra.” Allure had paid Blanch $750 for “Silk Sandals.” In addressing whether Koons’ appropriation of “Silk Sandals” was fair use or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the “intellectual property” rights of creators and protecting the freedom of expression, including referencing the works of others in new works of creation:

Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.

At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit notes, it considers with respect to this factor whether the work is “transformative” — that is, whether it adds something new to the original work so that it stands on its own as an original work of creation. The court thus quoted the Supreme Court’s decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message …, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine’s guarantee of breathing space …. Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).

The court’s conclusion that “Niagra” is genuinely transformative in its use of “Silk Stockings” is worth quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in favor of Koons:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at ¶ 4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] … to get … more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. 

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative. 

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The court also noted that in Campbell the Supreme Court had rejected the notion that a”the commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that ‘nearly all of the illustrative uses listed in the preamble paragraph of § 107 [setting forth the fair use test], including news reporting, comment, criticism, teaching, scholarship, and research … “are generally conducted for profit.”‘” Thus, the “‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” (Quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since “Niagra” is “‘substantially transformative, the significance of other factors, [including] commercialism, are of [less significance],’ [w]e therefore ‘discount[] the secondary commercial nature of the use.’” (citations omitted.)

I by no means would suggest that Blanch is so obviously on point in all respects that it requires the court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the 2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcia’s photo for Fairey’s reworking of that source material, it seems at the very least quite arguable that Fairey’s reworking of the photo meets the 2d Circuit’s test of a transformative work — one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Blanch also makes clear that it is of no moment that, Dan Heller’s assertions notwithstanding, Fairey’s work (1) was intended to convey a message, (2) was intended to “make a buck.”

It also makes plain that Heller is just plain misunderstanding the law when he states that “you cannot misappropriate someone’s likeness or their property without their consent.” (Emphasis in Heller’s original.) Koons neither sought nor received Blanch’s consent to use her photograph. Koons plainly made more than a buck in the transaction. And the fact that Koons’ message might have been a commentary on the world of “mass communication” does not seem any more worthy of fair use analysis even if we do assume, as does Heller, that Fairey’s poster was “merely” a piece of political advocacy. Finally, there is no applicable “right of publicity” that Fairey violated in appropriating Obama’s image (nor does the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity Obama hypothetically could enjoy on his behalf).

ADDENDUM: J O’Shea on Shepard Fairey and the Art of Appropriation.