Monday, November 07, 2005

Two Fair Use Cases

Two fair use decisions were issued in the Southern District of New York on November 1st. The first involved Jeff Koons appropriating yet again another photographer's work. The second involved use of very small excerpts from a classical musical performance by a nonprofit satellite program about the arts. The results in the cases are the opposite of what one would expect from this introduction.

If the White Sox can win the World Series, Jeff Koons can win a fair use case, and he did in Blanch v. Koons, S.D.N.Y. (Judge Stanton). The suit involved well-known fashion photographer Andrea Blanch, who did an advertisement for Gucci silk sandals, run in the August 2000 issue of Allure Magazine. Koon's painting Niagara was the alleged infringer. (Here's a link to a site with other Koons works).

Ms. Blanch's photo showed a woman's bare legs below the knees crossed at the ankles, resting on the knee of a man. She is, of course, wearing Gucci sandals which have an ornately jeweled strap. As Judge Stanton put it, "[o]ne of the sandals dangles saucily from her toes."

Unlike other works of Koons, such as his infamous "Puppies," which infringed a photograph by turning it into a three-dimensional sculpture with minimal additions, "Niagara" is genuinely transformative: Koons (or actual painters?) copied only portions of the photograph as one component of the painting, changed the perspective, and added Salavador Dali-like elements.

One need not pay the slightest attention to Koons' representations about what he set out to do to see that "Niagara" uses the work in a transformative manner. Indeed, not paying any attention to what Koons says has two signal values: (1) from a legal standpoint, one cannot as easily get enmeshed in debates about judges judging art: you merely look at his work to see if it is, objectively, transformative. I think Blanch was a transformative use and Puppies not. Second, by ignoring Koons's remarks, one also avoids paying him the slightest attention, thereby avoiding feeding into the very source of his "art": attention.

In the second case, Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Foundation (Judge Buchwald), defendant was a nonprofit company that prepared and distributed a program called "Classic Arts Showcase," principally to public television and cable channels. Plaintiff was a licensor of audiovisual works. The fair use claim involved an excerpt of a performance by opera singer Lily Pons of "The Bell Song" in an old movie, "Carnegie Hall." The movie is 136 minutes long. Ms. Pons' performance was 5 minutes and 8 seconds long. Defendant used one minute and 25 seconds from Ms. Pons performance, preceded by an interview with opera singer Marilyn Horne and a voice over by her for the first 25 seconds of the performance.

In granting summary judgment to plaintiff, Judge Buchwald noted defendant's status as nonprofit organization and that the use in particular had an educational purpose. Factor one, defendant. The nature of the work was fictional, the court rejecting defendant's absurd argument that the performance was "factual" because Ms. Pons actually performed. (What is with such stupid arguments lately in fair use cases, in which obviously creative works are claimed to be factual?). Factor two, plaintiff. The amount taken was tiny. Factor three, defendant. Defendant's use clearly did not supplant the market for the movie, but because plaintiff licensed us of its clips, Judge Buchwald held that defendant's unauthorized use would "erode the market value" for the clip. Factor four, plaintiff.

A two-two tie, numerically, but the fourth factor tipped the scale to plaintiff.

Koons, Classic Arts Showcase, Koons, Classic Arts Showcase, who would have thought?


Michael Eisenberg said...

The Court's analysis of the fourth fair use factor in Video-Cinema Films is flawed. The reasoning employed, "because plaintiff licensed us of its clips, Judge Buchwald held that defendant's unauthorized use would 'erode the market value' for the clip" will almost always collapse this factor into a single question of whether Plaintiff sells licenses. I think the correct analysis should look at whether the defendant's use was supplanting the market for other potential licenses. Clearly it was not because Defendant did not sell its work and the Court should have found the Fourth factor in favor of the defendant. Anytime someone tries to use a work without permission as a fair use, they necessarily are not paying a license. I don't understand how the Court's reasoning adds to anything not already known in any fair use defense issue.

Anonymous said...

Dear Mr. Patry;
Regarding your statement " merely look at his work to see if it is, objectively, transformative. I think Blanch was a transformative use and Puppies not," you reveal your naiveté about the possibility of making "objective" judgements regarding visual documents -- images as opposed to texts composed of words. Whereas one could indeed objectively determine whether a text had been lifted verbatim or not, such observations regarding images are always highly subjective and subject to interpretation. Where visual art is concerned that is very much the point, since interpretation varies widely depending on what each viewer brings to the table. Many would disagree with your statement that Puppies was not a transformative use -- your reliance on factor three of the fair use doctrine ("amount and substantiality of the portion used...") is a simplistic one as you apply it to Puppies, comparing the original to the polychrome wood sculpture. There are many other elements at play. It is obviously a matter for interpretation and not "objectivity" hence the increasingly embattled nature of the subject at hand. Once again I am dismayed at the insufficiency of lawyers who routinely make judgements about visual documents.

Well, good day and best wishes -- maybe see you on another panel some time...

Joy Garnett,