According to the adage, imitation is the sincerest form of flattery. However, to what extent can one visual artist imitate the work of another visual artist? This topic came up recently on the Digital Painting Forum.
Anyone may duplicate the ideas or concepts reflected in your artwork. For example, if you paint a horse, copyright law does not prevent anyone else from painting a horse – even if it is the exact same horse. What another may not do is duplicate the expressive elements used by you in your artwork. Expressive elements in visual artwork include the selection of lighting, shading, camera angle (for photographs), background and perspective.
Copyright law also often allows you to use a copyrighted work if you transform the work in some manner. Your use of a copyrighted work is transformative if your use is creatively different from the way in which the
copyright owner used it. As a general rule, the transformed work can not serve as a substitute for the original work. Transformation is a key element in determining whether or not a particular use of a copyrighted work qualifies as a fair use.
Learning from the Experiences of Jeffrey Koons
Visual artist Jeffrey Koons seems to be a lightening rod for copyright infringement lawsuits. Looking at two of his experiences might help illustrate how to draw the line between copyright infringement and transformative use.
Jeffrey Koons Slammed with Copyright
Infringement Liability for String of Puppies
Jeffrey Koons’ String of Puppies is a wooden sculpture. Koons' inspiration for the sculpture came from Puppies. a photograph taken by Art Rogers depicting a couple with eight German shepherd puppies. While making the String of Puppies sculpture, Koons gave the following directions to the art studio assisting him:
- The sculpture be just like the photo.
- The features of the
humans and puppies be reproduced as per the photo.
- The puppies be painted in shades of blue with variation of light to dark as per the photo.
- The man’s hair be white
with shades of grey as per the black and white photo.
Koons took more than the idea of creating a piece of artwork featuring a couple holding puppies. He used elements of copyrightable expression from Rogers Puppies photograph. As a result, in this case, the court found Koons liable for copyright infringement.
Koons’ Use of Allure Magazine/Gucci Sandals Advertisement Is Fair Use
In another copyright infringement case, Koons incorporated pre-existing photographs and advertisements into a 10’ by 14’ billboard collage painting entitled Niagara. The painting depicts four pairs of women’s feet and lower legs dangling over images of confections.
Koons adapted one of the pairs of legs from an August 2000 Allure Magazine advertisement taken by Andrea Blanch and entitled “Silk Sandals by Gucci”. Silk Sandals depicts a woman’s lower legs and
feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in an airplane cabin. Koons copied and altered the advertisement including removal of the background and
modification of the perspective from horizontal to vertical.
Koons described the Niagara painting as “a social commentary on the way in which some of our most basic appetites for food, play, and sex – are mediated by popular images”. Blanch sued Koons for copyright infringement but the court ruled for Koons finding that his use of the advertisement was a
fair use. Among other factors considered in its fair use analysis, the court concluded that Koons use of the ad was transformative since Koons used it as raw material and “fodder for his commentary on the social and aesthetic consequences of mass media”.
