Re: Fine Art Reproductions

On 03/31/99, Patrick Begos <begos[_at_]ibm.net> wrote:
>
> On Wed, Mar 31, 1999, Charles Mann <ccm[_at_]crocker.com> wrote:
> >
> > In a slightly different vein, I recently met the photographer Lauren
> > Greenfield, a professional photographer (National Geographic, NY Times,
> > etc.) whose work recently was "appropriated," as I believe the term is,
> > by a painter named Damien Loeb. Greenfield published a book of photos
> > of LA teens a few years ago. The cover was a picture of four kids
> > driving around. Loeb took this image -- or, rather, painted a
> > completely faithful copy -- onto a large canvas and juxtaposed it
> > against a background taken from another photograph, a gory picture of
> > a white South African cop shooting some prone black people. By the
> > juxtaposition, the kids in Greenfield's picture are made to seem to
> > be speeding by the killing, laughing at the scene. The copy of her
> > photograph occupies about 40% of the painting and is obviously the
> > subject. Loeb exhibited the picture and others like it in the
> > prestigious Mary Boone gallery in Manhattan in January, where it
> > apparently sold for about $15K. Moreover, Greenfield told me, the
> > painting has been reproduced in many places, including the magazine
> > Artforum -- it's apparently become a sort of signature image for the
> > painter. My question is whether there's a copyright-infringement
> > issue.
>
> There was a case a few years back in which a relatively famous artist
> made a sculpture out of someone else's photograph. I believe the
> artist was found to have violated the photographer's copyright, and
> there was a good bit of press about it at the time (I think even a
> 60 minutes or something) Unfortunately, right now I have a mental
> block about the name of the artist. If I remember I'll let you know.
> Does anyone remember this? Actually, now I think I remember that the
> artist was deKoonig. Sorry this is so vague, but if anyone can supply
> details I'd appreciate it.

The case was Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). Pop sculptor Jeff Koons took a copyrighted photograph, removed the copyright notice, and directed his artisans to copy the photo as closely as possible in three-dimensional form. He attempted to avoid a finding of infringement by claimaing that his sculpture was a criticism of "the mass production of commodities and media images" and was intended to be a comment on "the political and economic system that created it." The Second Circuit (properly, in my view) rejected Koons claim that his work was a parody or a fair use. [Some of the language of the opinion, however, has been taken out of context and used to deny fair use protection to satires that are not deemed to be parodies.]

I should note that some academic commentators have expressed the view that Koons' work should have been held to be a fair use. See Lynne A. Greenberg, The Art of Appropriation: Puppies, Piracy and Post-Modernism, 11 Cardozo Arts & Ent. L. J. 1 (1992); Roxana Badin, An Appropriate(d) Place in Transformative Value: Appropriation Art's Exclusion from Campbell v. Acuff-Rose Music, Inc., 60 Brooklyn L. Rev. 1653 (1995).

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Apr 01 1999 - 19:03:19 GMT