Jeffrey Koons is well-known to artists, auction houses, and copyright enthusiasts.  His works of art have fetched substantial sums of money, including one that recently sold for more than $58 million—the most expensive work of art by a living artist sold at auction.  Some of Mr. Koons’ works also wind up being exhibited in federal courtrooms as he has been the target in a string of copyright infringement suits.  For example, Rogers v. Koons—a case involving Mr. Koons’ “String of Puppies” sculpture—is one of the leading decisions on the fair use defense of parody.

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He lost that case, but later rebounded with a victory years later in another copyright infringement lawsuit, Blanch v. Koons.  There, Mr. Koons’ painting allegedly infringed on a photograph of a woman bedecked in “glittery Gucci sandals.”  The Second Circuit sided with Mr. Koons and found his incorporation of the original work in his painting was sufficiently “transformative” such that he had not infringed Ms. Blanch’s copyright.

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On December 14, 2015, Mr. Koons was, once again, sued in the U.S. District Court for the Southern District of New York for copyright infringement in Gray v. Koons.  According to the allegations in the complaint, the Plaintiff is the author of a photograph that was used by Gordon’s Dry Gin Co. in an ad in 1986:

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Later that same year, Mr. Koons allegedly infringed this work when he created the following painting that was displayed as part of Mr. Koons’ “Luxury and Degradation” series:

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Mr. Gray is bringing the case now because he allegedly just discovered the infringement in July 2015.  As The New Yorker observed, “Luxury and Degradation” included reproductions of several “liquor-advertising posters in seductively intensified colors.”  Other liquor company ads by Bacardi, Dewers, and Frangelico were also reproduced in the “Luxury and Degradation” series.

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So, if past is prologue, Mr. Koons is going to defend on the basis of fair use.  Will this be a String of Puppies redux, or will he be able to side step this infringement suit?   On first blush, the allegations (if true) appear to share more similarities with Rogers than Blanch.  There appears to be a complete appropriation of the plaintiff’s photograph, just like there was inRogers.  And, to the extent Koons is relying on a claim of “parody” or “satire” in the present case (like he was in Rogers), it isn’t something that appears easily discernible from the work itself.  Blanch, by contrast, involved a substantial transformation of the original photograph by including a portion of the photo into a painting montage.  That type of transformative use does not appear to be present here.  On the other hand, the Second Circuit has expanded the notion of transformation in recent cases such as Cariou v. Prince  involving alleged infringement of photos and Authors Guild v. Google.  Mr. Koons will likely focus on the social statements he was trying to convey in the “Luxury” series, and how those statements commented on or criticized liquor companies and their advertisements in the 1980s.  Whether the Court will find that sufficient under Blanch, Cariou, and Google remains to be seen.  We will be monitoring this case closely and will keep you posted here at TheTMCA.com with any newsworthy developments.