Rogers is a professional photographer whose “Puppies” photo had been reproduced as a note card. Koons is an artist and sculptor who often uses images from mass culture to comment upon society. Koons modeled a three-dimensional sculpture entitled “String of Puppies” after Rogers’ image. He gave his artisans Roger’s note card and directed them to create a reproduction “just like the photo.” Rogers sued Koons for copyright infringement.
The court found Koons infringed Rogers’ copyright, concluding that:
- Rogers’ photo did indeed have sufficient originality (in the lighting, composition, angle etc.) to merit its own copyright;
- Koons had copied the photograph, as he admitted having access to the image and his instructions to his artisans commanded them to copy it closely;
- This direct evidence of copying and the substantial similarity between the two works was enough to infer copying; and,
- Koons had not just taken Rogers’ idea, but also the expression of it, rendering the copying illegal.
Koons raised a fair use defense, claiming his work was a permissible parody of “Puppies”. Koons suggested “String of Puppies” satirized society at large by criticizing the social deterioration the mass production of commodities has caused. However, this was not parody under this court’s rules, which required that the copied work, not just the society at large, be an object of parody. This requirement is meant to ensure that there is a practical boundary to the defense by making the audience aware that, underlying the parody, there is an original and separate expression, attributable to a different artist. Here the court deemed “String of Puppies” a satirical critique of material society, but not a parody of “Puppies” itself.
In addition, the Court looked at the effect that Koons’s work would have on demand for the original photograph and authorized derivative works. The Court determined that Koons had produced “String of Puppies” for monetary gain, and that it prejudiced the market for the licensing of reproductions and derivative works of the original work by decreasing demand for similar works.
In evaluating a fair use defense, a court will consider whether an artist operates in good faith. Here the court suggested Koons had operated in bad faith.