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December 13, 1990


The opinion of the court was delivered by: Haight, District Judge:


Plaintiff, a professional photographer, brings this action against defendants, a sculptor and an art gallery, for copyright infringement under the Copyright Act, Lanham Act violations, and unfair competition under the laws of New York and California. Plaintiff moves under Rule 56, Fed.R.Civ.P., for summary judgment on his first cause of action for copyright infringement. Defendants cross-move for summary judgment dismissing the complaint.


The facts are largely undisputed. Plaintiff Art Rogers is a professional photographer resident in California. In 1980 Jim Scanlon, another California resident familiar with Rogers' work, commissioned Rogers to make a photographic portrait of the Scanlons' new litter of eight German Shepherd puppies. Rogers went to the Scanlon home. Rather than attempting to pose the puppies alone, he included Scanlon and his wife Mary, who were photographed sitting on a bench holding the puppies. Rogers succeeded in getting two adults and eight puppies to hold still long enough to produce a charming photograph which Rogers named "Puppies." "Puppies" was published in Rogers' photography column in a local newspaper in 1980. The photograph was exhibited, along with other works by Rogers, at the San Francisco Museum of Modern Art in 1982. In 1984 Rogers licensed "Puppies" along with other works to Museum Graphics, a company that produces and sells notecards and postcards with high quality reproductions of photographs by American photographers, including Ansel Adams. Museum Graphics has produced and distributed the "Puppies" notecard since 1984. A signed print of "Puppies" has been sold to a private collector. In 1989 Rogers licensed the photograph for use in an anthology called "Dog Days." Rogers has stated in an affidavit that he plans to use "Puppies" in a series of hand tinted prints of his works.

Defendant Jeff Koons is a well-known American artist and sculptor resident in New York whose works are exhibited at galleries and museums in the United States and elsewhere and sold to the public. Defendant Sonnabend Gallery represents Koons and serves as his agent in connection with the display and sale of his works. In October 1986 Koons began the process of creating sculptures for what he eventually termed his "Banality Show." His work extended over two years. The exhibition opened at Sonnabend Gallery on November 19, 1988. The exhibition consisted of 20 sculptural works. In Koons' perception, "the subject for the show would be Banality but the message would be a spiritual one. And while being uplifting, the also work would be [sic] critical commentary on conspicuous consumption, greed, and self indulgence." Defendants' Main Brief at 6. All the works were sculptures in various media, including several in "polychromed wood," which is wood painted different colors with oil paint. Each work was produced in an "edition" of three, so that three copies were available for sale to the public. An "artist's proof" of each sculpture was also produced for Koons which he could sell later if he wished.

During the fall and winter of 1986 and throughout 1987 Koons collected material for possible sculptures. He then located and contracted with workshops that could craft the desired materials in the fashion that Koons desired.

At the end of 1987 or in 1988 Koons purchased at least two Museum Graphics notecards displaying Rogers'"Puppies" photograph. These cards were imprinted with Rogers' copyright, although the photograph had not yet been registered. Koons decided to use the photograph for one of the sculptures to be exhibited in the Banality Show. He tore off that portion of the notecard showing the copyright notice and sent the photograph to the Demetz Arts Studio in Italy, with instructions to make a polychromed wood sculptural version of the photograph, a work that Koons instructed Demetz "must be just like photo." Ex. 15 to Koons deposition (notes Koons furnished to Demetz in connection with producing the sculpture). Koons continued to communicate with Demetz, reiterating that the features of the humans and the puppies be reproduced "as per photo." Ex. 16. As to the painting of the sculpture, Koons gave Demetz a chart with an enlarged photocopy of "Puppies" in the center, and on which he noted painting directions in the margin with arrows drawn to various areas of the photograph. Koons instructed Demetz to paint the puppies in shades of "blue," with "variation of light-to-dark as per photo." The man's hair was to be "white with shades of grey as per black and white photo.") Ex. 14.

The end result was a polychromed wood sculpture 42 inches by 62 inches by 37 inches (not including the base which is 32 inches by 67 by 31 inches). Koons called the sculpture "String of Puppies."

Following the display of "String of Puppies" at the Sonnabend Gallery in December 1988, Koons sold the edition of three sculptures to collectors for a total of $367,000. Two were sold for the price stated by the Gallery of $125,000. The third buyer paid $117,000. Koons retains a fourth "String of Puppies" sculpture at his storage facility.

Rogers learned of the sculpture through Scanlon. A friend of Scanlon's familiar with the notecard called Scanlon and said that the photograph "Puppies" was on the front page of the calendar section of the Sunday Los Angeles Times, but had been "colorized." Scanlon, having obtained and read the article, realized that it was not a tinted version of the photograph "Puppies," but rather was a photograph of Koons' sculpture "String of Puppies," then on exhibition at the Los Angeles Museum of Contemporary Art. Scanlon told Rogers about it.

Rogers registered his photograph "Puppies" with the United States Copyright Office, obtaining registration number VA 352/001. The effective date of the registration is July 6, 1989. The certificate recites a date of first publication in the United States of November 20, 1980.

Rogers filed this action against Koons and Sonnabend Gallery on October 11, 1989.

It is common ground that Koons did not inform Rogers of his intended use of the photograph, and that Rogers had no knowledge of that use until Scanlon informed him.

Rogers now moves for summary judgment on the first cause of action in the complaint, for copyright infringement. Defendants cross-move for summary judgment dismissing all causes of action.


Koons says it does not for two principal reasons. First, he argues that Rogers' copyright protection "is strictly limited to the work as a photograph." Main Brief at 21 fn. (emphasis added). At oral argument, Koons' counsel carried that argument to its logical conclusion and contended that any sculptor could "use" or "copy" any copyrighted photograph without incurring liability as an infringer. Secondly, Koons relies upon the doctrine of fair use. I discuss these contentions in turn.


Koons' main contention under this heading is that the use he made of the Rogers photograph related only to non-copyrightable elements. Koons relies upon the familiar rule that copyright protection extends only to original acts of expression, so that purely factual information is in the public domain. See, ...

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