Jeff Koons’ retrospective show at the Whitney Museum of Art is a grand testimonial to his work over the decades. It is also “a time capsule for copyright law,” says Andrew Gilden, teaching fellow at Stanford University Law School.
Standing in front of a sculpture of an elderly couple holding eight blue, adorable puppies entitled “String of Puppies,” Gilden points out that Koons was sued in 1992 over this very sculpture. The artist had re-created a photograph taken by photographer Art Rogers and, juxtaposing it with other sculptures in his series, was trying to comment on the banality of the images we are bombarded with in daily life. Rogers sued, alleging that Koons’ sculpture amounted to stealing.
“The court looked at the sculpture, looked at the photo, and said they’re similar, it’s piracy,” says Gilden. “Doesn’t matter if he had some grander purpose.”
Back in 1992, “the court hated his work,” says Amy Adler, professor of law at NYU. “They saw him as involved in the business of art, saw him as a pirate, talked about how much money he made from the work, and he lost rather spectacularly.” Koons had to settle two other lawsuits on similar grounds.
Fast forward to 2006, Koons was sued yet again for using another artist’s work, this time in a collage.
The Supreme Court intervened in 1994 to say it’s OK to copy art if the new work is “transformative.”
“Does the work have a new purpose or character, has it altered the previous work with new meaning or message?” says Adler. “Whether the new work was transformative is the key to the test.”
Other considerations still listed in the 1976 copyright law receded in importance. These included the effect of the copying on a potential market for (or value of) the copyrighted work, and the extent, the nature and the purpose of the copying.
This, argues Gilden, has created a problem.
“This shift in fair use has predominantly protected big name defendants who appropriate from small name artists.” Gilden says in most visual art copyright cases in the past 10 years, the wealthier more famous artist has won. They’ve won defending against claims they copied someone else’s work, and they’ve won pursuing others for copying their work. Gilden argues this is because courts, like people, think of famous and non-famous art differently.
“We have a hard time thinking of prominent artistic works as being raw, as being the building blocks for something better.”
While cases like those of Jeff Koons or Richard Prince “might seem to open up the doors to more sharing and accommodation of sharing, copying, appropriation art, it does not,” says Gilden. The law around fair use is still vague, and the expense of challenging if one is found guilty of copying is immense. And, adds Gilden, “Other less prominent artists have lost in situations similar to Koons’.”
William Fisher, who teaches Intellectual Property law at Harvard Law School, offers another explanation for the disproportionate success of the wealthy and famous: “Wealthy artists are much more likely to be sued than poorer artists because they have deeper pockets.” On the other hand, “Other features of copyright law do unfortunately bias the system in favor of more wealthy and sophisticated defendant artists.”
First off, he says, “The unpredictability of the fair use system means you have to hire a lawyer in order to mount a defense, and lawyers are expensive.” The federal litigation system also now gives plaintiffs the opportunity to conduct very expensive discovery in the course of litigation, “which is financially burdensome for anyone.” Lastly, remedies and damages, if one loses a copyright case, can be immense.
The unpredictability of copyright cases is one of Adler’s primary criticisms: “One of the worries that I think we should all have about the extremely chaotic and uncertain area of fair use law is it will force artists to steer clear of engaging in work they should otherwise be able to do for fear of getting sued, and that applies to all artists rich or poor.”
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