The first lawsuit
stemming from the “Banality” shows was filed in 1989, when artist-photographer Art Rogers sued Koons for exhibiting and selling a sculpture of his photograph Puppies,
which showed a man and a woman clutching eight dogs. Koons’s defense of his work, String of Puppies
was simple: His transformation from a two dimensional image to a three-dimensional sculpture was completed with the intention to parody and thus, it qualified as fair use, a legal defense to copyright infringement.
Koons and his lawyer argued that the artist believed “the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically on both the incorporated object and the political and economic system that created it.”
While this gives a viewer something to mull over, it did not amount to a sound legal defense. Implicitly, if accepted, this argument would provide a blanket exemption for copying so long as the resulting work was considered to be a part of a genre of art that parodied society at large. The court accordingly disagreed with the artist’s line of argument, pointing to the fact that the copied work must be, at least in part, “an object of the parody, otherwise there would be no need to conjure up the original work.” The court noted that if the point was to parody society broadly, Koons did not need to use copy Rogers’s work specifically.
On the fair use spectrum, a parody is often afforded broad latitude as a defense against copying, even when the copy is almost exact. The parodical nature of a new work is, however, only one of four broad elements determining fair use. Another is commercial. In deciding against Koons, the court also examined the nature of Rogers’s work in depth, highlighting the fact that Rogers’s main stream of income with respect to his work was derived from licensing it commercially such that if Koons’s copying was a fair use, Rogers’s works would become worthless. Koons had argued that the commercial nature of Rogers’s work should have implied a lower level of protection; that art of critical acclaim should be afforded stronger legal protection.
The court, in its opening statement, indicated that it strongly disagreed with Koons’s view:
The copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism.
The Rogers judgment made a clear proclamation that courts would not take a position on artistic credibility. A parody defense would require the parody of the appropriated artwork. Parody would not be allowed as a blanket rationalization for an entire genre of art that commented on broad cultural and societal concepts.