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Rogers v. Koons - 960 F.2d 301 (2d Cir. 1992)


To establish an infringement of a copyright, a plaintiff must show both ownership of a copyright and that defendant copied the protected material without authorization. The Copyright Act makes a certificate of registration from the U.S. Register of Copyrights prima facie evidence of the valid ownership of a copyright though that presumption of ownership may be rebutted. Protection under the copyright statute extends to pictorial works. For more than a century, photographs have been held to be copyrightable "writings" under U. S. Const. art. I, § 8.


Defendants Jeff Koons, a sculptor, and Sonnabend Gallery, Inc., appealed from a summary judgment and contempt order of the United States District Court for the Southern District of New York in plaintiff Art Rogers' action for copyright infringement under 17 U.S.C.S. § 101 et seq. Rogers, a photographer, appealed the denial of a damages award prior to trial for infringing profits. The evidence showed that Koons instructed his artisans to copy a portrayal of a couple and their puppies in a photograph by Rogers on a copyrighted note card. Koons tore the copyright notice off the card before sending the card to the artisans.


Was Koons' use of Rogers' work a privilege of "fair use?"




The appellate court affirmed the district court's judgment. The court ruled, inter alia, that the district court properly granted Rogers summary judgment and properly entered a contempt order against Koons for failing to turn over four copies of infringing sculpture. The court held the copies were made primarily for Koons' commercial benefit. A "fair use parody" under the 1976 Copyright Act,  17 U.S.C.S. § 101 et seq., claimed by Koons had to parody the copied item at least in part rather than copy the work wholesale as part of a claimed parody of society at large. The district court properly denied Rogers summary judgment as to damages because Koons still was entitled to prove and retain deductible expenses in producing the copies and the value of the copies attributable to his fame.

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