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Blanch v. Koons - 467 F.3d 244 (2d Cir. 2006)


The determination of fair use is an open-ended and context-sensitive inquiry. The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the illustrative and not limitative function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors of 17 U.S.C.S § 107 be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.


Plaintiff Andrea Blanch, a photographer, filed a lawsuit in federal district court against defendant Jeff Koons, a visual artist, for violations of the Copyright Act of 1976; the complaint also named The Solomon R. Guggenheim Foundation and Deutsche as defendants, as they commissioned the particular piece of art at issue. Blanch alleged that Koons infringed Blanch's copyright in a photograph by incorporating a portion of the photograph into Koons' collage painting. Defendants filed a motion for summary judgment, which the district court granted. The court found that defendants were not liable for copyright infringement because Koons' incorporation of the photograph in his painting constituted fair use. Blanch appealed.


Was the fair use doctrine applicable when an artist, such as Koons, uses a copyrighted photograph in a collage painting?




The appellate court affirmed the district court's judgment. The court ruled that Koons' copying of the photograph was indeed reasonable when measured in light of his purpose, to convey the "fact" of the photograph to viewers of the painting, and in light of the quantity, quality, and importance of the material used. Koons' appropriation of the photograph was intended to be transformative, because the exhibition of the painting could not fairly be described as commercial exploitation, and because there was a lack of bad faith.

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