Blanch v. Koons

Fair use is a mixed question of law and fact, but the Second Circuit has repeatedly resolved it at summary judgment where the material facts are undisputed. The court reviewed the district court’s grant of summary judgment de novo and concluded that the relevant facts about Koons’s copying, purpose, alteration of the photograph, and the absence of market harm were not genuinely contested.

The court emphasized that fair use is a context-sensitive inquiry under § 107. The four statutory factors are nonexclusive and must be considered together, rather than mechanically or in isolation, in light of copyright’s constitutional purpose of promoting progress in science and the useful arts.

The central inquiry is whether the new work merely supersedes the original or instead adds new expression, meaning, or message. Koons did not simply exploit “Silk Sandals” in its original fashion-advertising role. He altered the image’s color, orientation, details, size, medium, background, and setting, and incorporated it into a large collage painting displayed in a museum context.

Blanch created “Silk Sandals” as an erotic fashion image for a glossy magazine. Koons, by contrast, used the legs as part of a commentary on consumer culture and on the social and aesthetic effects of mass-media imagery. Those sharply different objectives supported the conclusion that his use was transformative.

Although “Niagara” was closer to satire than parody because it commented on the kind of image represented by “Silk Sandals,” rather than necessarily criticizing that individual photograph, Koons adequately justified his borrowing. He explained that the ubiquity and authenticity of an existing magazine image helped him evoke the visual language of consumer culture; using the actual image was, in his account, like quoting rather than paraphrasing.

The court did not evaluate the artistic merit of Koons’s work. Its task was only to determine whether he had a genuine creative rationale for using Blanch’s image, rather than copying merely to attract attention or avoid creating something new. The undisputed record established such a rationale.

Koons profited from “Niagara,” and the commissioning institutions earned some exhibition and merchandise revenue. But commerciality is only one component of the first statutory factor, not a presumption against fair use. When a use is substantially transformative, commerciality has less significance because the new work is less likely to function as a substitute for the original.

The defendants’ financial gains were not solely private exploitation of Blanch’s image. The creation and public exhibition of art also provide broader public benefits, and Koons’s use of the image was only one part of the larger collage painting rather than the direct object of commercial exploitation.

Blanch’s only alleged bad faith was Koons’s failure to request permission. The court held that failure alone is not bad faith for fair-use purposes. If a use is otherwise fair, permission need not be sought, and the record lacked misconduct such as theft, concealment, removal of a copyright notice, or breach of confidence.

The court disagreed with the district court’s suggestion that Blanch’s photograph, or its copied features, should be characterized as banal rather than creative. Blanch’s photograph was a creative work, which ordinarily gives the copyright owner some advantage under the second factor.

Still, the work had already been published, which favors fair use more than copying an unpublished work would. More importantly, where a creative work is used for a transformative purpose rather than for its original expressive appeal, the second factor is of limited usefulness in deciding the overall fair-use question.

The third factor asks whether the quantity and qualitative value of the material taken were reasonable in relation to the purpose of the copying. A transformative user may take enough to convey the source material or fulfill the new work’s legitimate purpose, but may not take expressive elements unnecessarily.

Koons copied only the woman’s legs, feet, and sandals. He excluded the airplane interior and the man’s lap, which Blanch identified as important parts of her creative composition. Thus, he did not take the aspects of the photograph whose force rested most directly on Blanch’s individualized expression.

By isolating the legs and feet, Koons took the portion he reasonably viewed as necessary to evoke a familiar style of mass communication. The court therefore concluded that the amount used was reasonable in light of his purpose and weighed distinctly in the defendants’ favor.

The relevant question is not whether a secondary work eliminates every possible licensing fee, but whether it usurps the market for the original work or for derivative uses that copyright owners generally develop or license. A copyright owner cannot define the relevant market merely as the market for licensing the challenged use itself, because every successful fair use necessarily forgoes a royalty.

Blanch conceded that she had not licensed “Silk Sandals” after its publication, had never licensed any photograph for use in graphic or visual art, suffered no career injury, had no disrupted plans for the image, and saw no decrease in its value. These concessions demonstrated no actual market harm.

Nothing in the record showed a traditional or likely derivative market that “Niagara” displaced. Unlike a work that repackages the original for the same audience or substitutes for ordinary licensing, Koons’s painting occupied a distinct market and purpose.