The Design Observer Group

Posted 01.21.08

James Traub

Art Rogers vs. Jeff Koons

Left: Art Rogers, Puppies, 1985 © Art Rogers. Right: Jeff Koons, String of Puppies, 1988

Editor's Note: We have been struck by the recent controversy generated by Richard Prince's exhibition at the Guggenheim Museum in New York City: some are arguing that the work is not original given its use of photography by others. Richard Prince fed the fire with quotes such as, "I never associated advertisements with having an author," or ""I didn't do it, but I saw it, and that must count for something." The New York Times ran an article titled, "If the Copy Is an Artwork, Then What's the Original?"

A review by Jon Carroll in the
San Francisco Chronicle compared the controversy to the 1989-1992 legal battle between photographer Art Rogers and artist Jeff Koons. In 1992, Paula Scher and I commissioned James Traub to write about the Art Rogers vs. Jeff Koons legal case for a series titled, Subjective Reasoning. (The published essay, designed by Chip Kidd, is long out-of-print.)

With the kind permission of the author, James Traub, we are pleased to offer this long narrative and perspective on this case — perhaps relevant to recent discussions about Richard Prince.

Photograph: Art Rogers, Puppies, 1985. Offset lithograph on coated paper; 4 5/8 x 5 3/4 ins. © Art Rogers


Art Rogers refers to himself as "a professional artist and photographer." His work has often been exhibited, generally in and around his home of Point Reyes, California. In the course of his 25-year career he has, according to his resume, received various honors, including a Guggenheim fellowship and several other grants. His work is held in the permanent collections of the San Francisco Museum of Modern Art and the Center for Creative Photography of the University of Arizona. Nevertheless, by "professional artist" Rogers may mean something different from what Jeff Koons means by "artist." The word "art" makes Rogers uncomfortable. He takes pictures for a living.

Rogers began as a child portrait photographer, and then a newspaper photographer, in Raleigh, North Carolina, where he was raised. In 1967 he moved to northern California and became a photographer for UPI and the Redwood City Tribune. Four years later he moved to Point Reyes and established a studio. In 1974 he began publishing his pictures in a column called "The Point Reyes Family Album" in the local paper, the Point Reyes Light. He participated in the Day in the Life of America project. California magazine ran a series of his pictures under the title "Just Plain Folks."

Rogers specializes in Americana, in the kind of image popularized by Life and Look magazines. "Three Little Cowboys" features three boys sitting in the center of a wood-paneled rec room; two of them wear cowboy hats that seem incongruously, and thus comically, large for their little heads. In "Cow Crossing" a broad, ruler-straight country road bisects the picture plane; a cow crosses in the middle ground. In these and other pictures, the contrast between light and dark is emphatic. The subject is front and center. The emotions are uninflected. Rogers' photographs have no residual content.

Rogers likes making things. He makes little boxes from crates and decorates them with beads, shells, pieces of glass and mirror, brass nails and tacks. One year he put bottles of homemade coffee liqueur inside and gave them as gifts. At one time he carved backgammon sets. He's experimented with photographic technology, including a method that makes a picture look three-dimensional when viewed through special Polaroid glasses. When he talks about his photography, Rogers emphasizes the hand-crafted element.

In 1980, James Scanlon, whom Rogers had met a few years earlier, called and asked if Rogers would take a picture of the litter of pups his German shepherd had just had. Scanlon later said, "I specifically commissioned Art so that the photograph would have his genius — his special 'magic' — and he provided it." Rogers spent hours finding the right pose for the Scanlons and their pups. He worked to catch just the right light. And afterwards he labored long and hard in the darkroom processing and printing the image. Rogers was just as pleased with the result as the Scanlons were. He said that "Puppies" was "one of my best images. It has a beautiful, creamy soft but crisp light . . . I wanted the puppies to look real cute, and they are cute." The Scanlons agreed to let Rogers publish the picture in "The Point Reyes Family Album."

In 1984 Rogers reached an agreement with a card company to sell notecard and postcard versions of "Puppies" and three other pictures. End of story — until the moment in May, 1989, when James Scanlon called to say that a "colorized" version of the photograph had been printed on the front page of the Los Angeles Times' Sunday calendar section. Rogers quickly discovered that Jeff Koons, an artist he had never heard of, had turned his picture into a sculpture, and that the piece had been included in an exhibition at the Los Angeles County Museum of Art entitled "A Forest of Signs." Rogers was outraged. Koons had made no attempt to contact him, much less to compensate him for the use of the image. He decided to sue for copyright infringement.

In October, 1989, Rogers files suit against both Koons and his principal gallery, the Sonnabend Gallery. He alleged that the three sculptures titled "String of Puppies" constituted "copies, reproductions or derivative works of 'Puppies.'" He sought at least $375,000 in compensatory damages, and $2.5 million in punitive damages.

The framers of the Constitution thought highly enough of the principle of copyright that they wrote, in Article I, Section 8, clause 8, "The Congress shall have Power . . . : To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." And yet the language makes clear that copyright protection, like other grants of monopoly, was a private good given in order to satisfy a larger, public objective. As the Supreme Court put it in 1954, "encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' "Copyright could never be an absolute right, like freedom of speech or assembly, because it was a form of private property limited by public considerations. The clash of individual rights and public welfare, or different views of public welfare, has kept copyright law in a permanently unsettled state.

Even the most apparently straightforward principles of copyright law seem mired in fudge. For example, what, exactly, is a "copy"? The accepted judicial test for copying is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." This is known as the "substantial similarity" test. If I draw a mouse that looks just like Mickey Mouse, but I change the color of his spats, "the average lay observer" would instantly recognize that the one was "appropriated from" the other. But what if I put Mickey's famous ears on a dog? The ears would be appropriated, but the work would not. "Stirring one's memory of a copyrighted character," as the Second Circuit Appeals Court has written, "is not the same as appearing to be substantially similar to that character." Appropriating, by itself, is not copying. "Protection covers the 'pattern' of the work," as one copyright scholar has put it.

What is it that I am protecting when I copyright my book or painting or cartoon character? Not "mouse," or "big, round ears," but an original, creative expression. You cannot copyright facts, even as an aspect of a creative work. An historian who uncovers, say, the truth behind the extinction of Mayan civilization, cannot prevent a magazine from publishing an article about the Mayas based on his discoveries, though he could sue if the article lifted extended passages from his book. Nor can you protect ideas, which are the abstracted form of individual expression. Philosopher John Rawls may have invented the concept of "the veil of ignorance," but he can't sue another philosopher for lifting it. Ideas, and facts, are public property.

All of this is the easy part of copyright law. What throws everything into a cocked hat is the principle that copying is not always a violation of copyright. Some acts of appropriation constitute a "fair use" of the original, a use considered socially valuable enough to permit some encroachment on the copyright holder's monopoly. For almost 300 years fair use was an "equitable rule of reason," set of broad precepts applied by judges according to the facts an hand. Then, in 1976, when congress rewrote the copyright statute, the rule finally gained a proper legal pedigree, though it retained its open-ended character. Section 107 of the Copyright Act stipulated that "fair use of a copyrighted work . . . is not an infringement of copyright." In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The advocates and Talmudists of copyright law have haggled over every word of the statute, as well as its framework. Is fair use meant to be applied according to a relatively predictable logic, or on a case-by-case basis? Which of the four criteria counts the most? In the last major copyright case to reach the Supreme Court, Harper & Row Publishers v. Nation Enterprises, the Court observed that the market-harm factor "is undoubtedly the single most important element of fair use." But an unsigned article in The Harvard Law Review suggests giving equal weight to the first factor, so that a sufficiently valuable "use" might be held to be non-infringing despite a showing of some market harm. Lawyers for photographers and illustrators — for people like Art Rogers — tend to focus on factors two and three, arguing that substantial takings from copyrighted work should be considered infringing even in the face of a valuable secondary work, or minor economic harm.

Fair use, in other words, is not self-interpreting; you construe it according to whom you most want to protect. In two recent cases, for example, Pierre Leval, a District Court judge in the Second Circuit, which includes New York, and thus produces most of the important copyright cases, decided in favor of the defendant — the copier — and was overturned by the Appeals Court. A law professor who studied the decisions said that they had less to do with technical legal issues than with the fact that Leval viewed copyright as "conditioned on and subservient to the public good," while the Appeals Court understood it as "private property, the owner's to do with as he pleases, subject to exceptional and quite limited socially justified uses."

The most celebrated copyright case of recent years, and one that squarely posed the conflict between the "private property" and "public good" aspects of the law, was Harper & Row v. Nation. In this case The Nation magazine had received advance galleys of Gerald Ford's memoirs, A Time To Heal, and run an article about Ford's decision to pardon former President Nixon quoting extensively from the as-yet-unpublished book. The publisher sued for copyright infringement, citing as evidence potential loss of book sales, as well as Time magazine's decision to cancel a planned excerpt from the book, and the magazine's demand for the return of half of a $25,000 first serial fee.

The trial court found that the article infringed the publisher's copyright; the Appeals Court reversed, finding that the article constituted fair use; and the Supreme Court reversed again — a common pattern in copyright cases. Even though The Nation was a venerable, public-spirited magazine breaking a major story, the Supreme Court found that the "purpose and character of the use" was "commercial," since The Nation knowingly pre-empted the book's first serial publication rights. And since market harm was "the single most important factor," the $12,500 loss was decisive.

Justice William Brennan wrote a dissenting decision arguing that The Nation had taken facts, not expression, from the Ford book, and that the magazine's essentially educational intent protected its appropriation as a fair use. He accused the Court of jeopardizing "the robust debate of public issues that is 'the essence of self-government.'" The case straddled the boundary between private property rights and the First Amendment. Where the judges came down had a great deal to do with their beliefs about the relative importance of these two values.

Rogers v. Koons was like a war in which both sides had been edging up toward violence for years. Ever since the Sixties, artists had been incorporating copyrighted or trademarked images into their works. By the late 1980s there was a sizeable group of artists whose work consisted almost entirely of appropriation. There had been disputes before, but they had always been settled out of court. Andy Warhol had settled with a number of photographers after using their work without permission. In the 1970s photographer Arnold Newman had sued Larry Rivers after Rivers used a Newman photograph of the Statue of Liberty in one of his drawings. David Salle had been sued in 1984 after including in a painting a portion of a drawing that was in turn based on the famous photograph of Jack Ruby shooting Lee Harvey Oswald — a daisy chain of appropriation. Salle's dealer, Leo Castelli, agreed to give the artist $1,000, according to John Koegel, Salle's lawyer. Salle was sued again in 1989 after using a photograph as the basis for a backdrop he painted for the opera "Birth of A Poet." Salle settled that one, too, before it went to trial.

What was different about Rogers v. Koons was that Jeff Koons had sold the allegedly infringing works for $375,000. Art — an art based on appropriation — had made Koons rich. The works in his Banality show had sold for over $6 million. Not only did this enormous sum give Art Rogers every incentive to pursue the issue to trial, it also made Koons a wonderfully inviting target. Art Rogers, the humble craftsman in beads, shells and emulsion, represented something simple, familiar, endearing. He earned his living making things, and all he asked was full payment for his products. Jeff Koons "has literally taken bread from Rogers' table," as Rogers' brief put it, reducing a copyright dispute to something out of A Tale of Two Cities. Koons was the perfect embodiment of what Rogers' lawyer, Donald Prutzman, referred to as "big-time contemporary art."

Rogers' argument seemed virtually self-evident. He possessed a valid copyright in his photograph of the puppies, and Koons had torn off the copyright notice and then made a virtual replica of the photograph without purchasing the right to do so. What was more, the reckless plagiarist had even left a smoking gun behind. In the course of overseeing the construction of his sculpture, Koons had faxed a series of notes from fine hotels all over Europe to his artisans in Italy. Among his instructions were "work must be just like photo," "keep as per photo form of puppies," "the puppies must have variation in fur as per photo," and so on. In other words, "copy."

But of course that was only part of the truth. The faxes also show that Koons went to great lengths to persuade his craftsmen to give the puppies a cartoon nose. Like Rogers, they understood copying, but not subversion-through-copying. Koons wrote, "The work should have an intensity in between real life and animation — but do not animate — just make details sharp and at times slightly exaggerated." Koons' instructions were in fact a guide to the way that an art form based on appropriation actually works.

The core of Koons' defense was that the Rogers notecard represented a "completely accurate and literal depiction of two real people holding eight puppies belonging to them." The card was a fragment of data, a journalistic recording, rather than an expressive work. Yes, Koons had borrowed from the work; but what he had borrowed was information rather than expression. The profound differentness of Koons' intentions from Rogers' dictated that he would only mine the original for its raw material. It hadn't even occurred to him that a copyright issue might be implicated, and he had torn off the backing of the card because it consisted of essentially blank paper, and not because it contained evidence of a legal obligation. Koons' lawyer, John Koegel, strongly questioned whether a sculpture could ever be considered a copy of a photograph, so great was the transformation required in the change of medium. And even if it was found to be a copy, Loegel contended, the artistic nature of Koons' work should privilege it as a fair use.

Both Koons and Rogers moved the court for summary judgment, which is a decision rendered by a judge in the absence of factual issues that need to be presented at trial. In copyright cases summary judgment is sometimes granted for the defense, but very seldom for the plaintiff. In this case, the unusual happened. On December 10, 1990, Judge Charles Haight of the federal District Court in Manhattan granted summary judgment to the plaintiff. "Rogers' photograph," he wrote, "is a creative work." It was not a "cupcake," neither was it a literal recording; it was "charming." Koons' sculpture was clearly substantially similar to this expressive work. Haight was not impressed by Koons' claims of fair use. "Notwithstanding its unquestioned status as a work of art," he noted dryly, "the sculpture is not unsullied by considerations of commerce." Haight found that the balance tipped toward Rogers on all four fair use factors. Koons was ordered to turn over all "infringing materials," including a fourth edition of the sculpture, an artist's proof.

Jeff Koons, String of Puppies, 1988. Polychrome on wood; 62 x 37 ins.


Jeff Koons is an artist. He insists upon this distinction to a degree that is rare nowadays, and it would seem niggling to withhold it. Serious people take his work seriously. His sculptures command $100,000 or even more, and even as the contemporary art market has fallen off a cliff the Koons market has barely faltered. His work is troubling, obscure, original and possibly offensive. It is not, in general, pleasing. Sir Philip Sidney said that art should seek to instruct and delight, but contemporary art distrusts delight as a snare, and is very much prone to didacticism. Koons shares this attitude of high seriousness. He has read Jean Baudrillard, an opaque and elusive thinker who has influenced the current generation of American artists, and he discusses his own work in large intellectual terms. He often says that he wants to be "effective;" and it seems, by his own standards, that he has been.

Koons is also a flamboyant character, in a way that is very much out of fashion among his peer group. In 1977, after graduating from the Maryland Institute College of Art, he moved to New York to join the art scene. One of his first jobs was at the membership desk of the Metropolitan Museum, where he outfitted himself, or so he later told People magazine, in sequined cuff links and sponge bow ties; he also dyed his hair red and sported a pencil mustache. He signed up record numbers of new members. Koons, in fact, had a flair for salesmanship. In the early 1980s he supported himself by working for a series of commodities brokers and mutual funds. Though many of his contemporaries in the art world were mounting an all-out attack on capitalism and its values, and though he largely shared their ideology, Koons took a keep pleasure in the workings of the marketplace.

Koons was one of the great — perhaps the great — success story of the art world in the 1980s. He had his first one-man show in 1980 at the New Museum of Contemporary Art in New York. It was titled "The New," and it featured a series of vacuum cleaners suspended in plexiglass cases — doughtily functional objects that had been elevated, mockingly, to a state of antiseptic purity, almost of holiness. "The gestalt," as Koons later explained, "came directly from viewing an inanimate object . . . that was in a position to be immortal." Five years later, for his next one-man show, Koons created a series of basketballs suspended in fluid inside plexiglass boxes. The basketballs, like the vacuum cleaners, struck some people as yet another pretentious put-on from the art world. But others — the ones who counted — were struck by Koons' nightmarish fascination with entombment, with a purity that seemed to court death.

By the mid-80s Koons could stop cold-calling retired dentists to make a living. He was a rising star of the international art world. For 1988 he planned a show that would run simultaneously at his galleries in New York, Chicago and Cologne. The show was called "Banality," and would feature banal images from popular culture blown up into large, perfectly finished sculptures. The making of art for Koons is a conceptual rather than a manual act, and he began scouting both for appropriate images and for artisans to translate the images into finished form.

While in Milan, or perhaps in New York or Germany — he's not sure which — Koons bought a notecard of a smiling couple holding a litter of eight puppies. It joined his pile of advertisements and celebrity photos and other detritus from pop culture. The picture struck Koons as mass-produced junk — "a cupcake," as he later called it. But Koons created art by brooding on pop cultural junk, and he decided to assign a group of Italian craftsmen the job of reproducing the photo, with certain subtle changes, in painted wood — a style known, when used in church sculpture, as polychrome. And his artisans, in fact, normally made religious figurines. He tore off the back half of the card — the part with the copyright notice printed in tiny letters — and sent it to the shop in Italy.

The "Banality" show was a phenomenal success. People magazine, that arbiter of popular culture, pronounced it the "hottest exhibition" since Andy Warhol showed his soup cans in 1962. Koons' sculptures grossed over $6 million, including $375,000 for the three renderings of "String of Puppies," Koons himself was featured on the front page of The Wall Street Journal. He works were celebrated and loathed in equal measure. He had become, beyond cavil, effective. "In this century," Koons told a reporter, "there was Picasso and Duchamp. And now I'm taking us out of the 20th century." And then, on his way to the promised land, Jeff Koons was hit in the back of the head by a cupcake.

Let us constitute ourselves, for a moment, as "average lay observers," and scrutinize "String of Puppies" and "Puppies" for signs of substantial similarity. But before doing so, we must keep one very important fact in mind: Rogers v. Koons was not a case about two photographs, but about a sculpture and a notecard. "String of Puppies" was three-dimensional object, 62 inches high, 42 inches across and 37 inches deep. It was painted on wood, as religious icons traditionally are. And the sculpture had a public context. In the Banality show it was mounted on a large, white base and bathed in bright gallery light, as if it were an object to be venerated and not merely observed. The notecard, by contrast, was something you would pick out of a rack in a gift shop.

That being said, let us look at the two works. What would you say if you wandered into the fateful gift shop and pulled "Puppies" out of the rack? "Cute," probably. The picture radiates the simple pride and joy of parenthood, though the children happen to be dogs. The card has nothing else to say. But don't put it back yet; keep looking. Look at the big, tight smile on the face of the proud parents; it's a smile that expresses not an internal state, but the fact of being photographed. The smiles actually reduce the people's individuality. The dogs, unlike their owners, look unhappy and subdued, perhaps because they're button-eyed. They appear to be hooked up to one another, as if they were units of a single master dog. They, too, seem to have had their individuality sapped.

Actually, it's sort of a depressing photograph, in the sense that it makes you feel a little bit less alive than you were before you picked it up. The card inadvertently undermines its own mood. It makes you wonder if Jeff Koons became what he is today by staring too long at objects that he should have discarded after a glance.

In "String of Puppies" the people and the dogs have been placed in a posture identical to that in the notecard. The people have the same features, the same haircuts, the same clothes. Asked if he considered the sculpture "a work of art," Art Rogers said, "Koons' piece to me is a copy of my photograph." It is; and yet it isn't. What was lurking underneath the photo has become the explicit content of the sculpture. "String of Puppies" offers triteness on a heroic scale — a strange and troubling idea. The all-around cuteness of the notecard, its softness, has been hardened into the little cute-symbols of the daisies. In the notecard the viewer unconsciously completes the legs that are cut off at the bottom of the picture frame; in the sculpture, the dog-owners simple do not have legs. And the unreality of the dogs, too, has become explicit, by making them blue and reducing their noses to a cartoon flatness. Koons has drained away the false emotion of the original, and then has enthroned the lifeless result. The whole object is solid, massive, glowing with light and vivid color — a minutely-wrought shrine to a cupcake god.

"I vividly remember being stunned when I first walked into the gallery," wrote a curator, John Caldwell, in an affidavit submitted by the defense. "The work was so magnificently new and so powerful . . .The figures become demented or demonic. The sculpture becomes horrific. We are unnerved and our sense of our own reality, its sources and its meanings, is called deeply into question."

This was not, in fact, a universal reaction, though it may help explain why "String of Puppies" sold for $125,000. Kirk Varnedoe and Adam Gopnik, the authors of the catalogue for the "High & Low" show at the Museum of Modern Art, wrote that "no one really could have been shocked or much affected" by Koons' implicit argument that vacuous, second-hand images had come to supplant the real. And yet there was something deeply unsettling in Koons' practice of conjuring into vivid, three-dimensional life his images of depletion and failure. "The desire to make newly imagined things look vitiated and secondhand," they wrote, "seemed to express a preference for death over life, and even in a weary time this remained shocking."

Do you conclude, average lay observer, that "String of Puppies" was "appropriated from" "Puppies"? If "appropriated from" means "inspired by" or even "based on," it would be hard to conclude otherwise. But if it means that the sculpture was a copy of the notecard, it would, would it not, strain the meaning of the word "copy"? Unfortunately for Jeff Koons, none of the judges who determined his fate saw his sculpture.

First there were Picasso and Duchamp, says Jeff Koons; then there was Jeff Koons. Comments like these, delivered with an air of supreme earnestness, appear to be the marks of an authentically delusional personality. But Koons has art history on his side, if not, in all likelihood, the judgments of posterity.

Picasso, along with Braque, Gris and others, initiated the practice of incorporating bits of materials from the emerging urban culture — newspaper and magazine advertising, posters, floating typeface — into painted work. Duchamp went much further, presenting what he called Readymade objects — a bottle rack, a urinal — an art, in effect inventing conceptual art. "He took an ordinary article of life," Duchamp said of himself, and "placed it so that its significance disappeared under the new title and point of view — created a new thought for the object." Koons has made the point that Duchamp showed the Readymade with indifference to it," while he himself "maintains the integrity of the object."

Koons seems to have less in common with Duchamp than with Andy Warhol, who also was fascinated by the eye-popping colors and glossy, textureless surface of modern imagery. Over time the subversive impulse in Warhol's work gave way to a kind of deadpan irony, so that it became impossible to say whether he intended his mechanically reproduced Coke bottles and celebrity portraits as criticism or homage. Warhol loved celebrity, and courted stardom with an abandon that could be interpreted as a joke on the asceticism of high art. Koons has done the same thing, but it's no longer possible to interpret it as anything save ambition.

The re-processing of imagery has long ceased to be an amusing alternative to the high art fixation of the Abstract Expressionists. Contemporary artists tend to think of mass culture as an enclosure, a synthetic environment that has wholly supplanted the natural one — a forest of signs. Jean Baudrillard, the cryptic Frenchman who several years ago captivated Koons and his circle, has written, "The very definition of the real has become: That of which it is possible to give an equivalent reproduction." In other words, everything is appropriated. "Originality," like "nature," is a social construct, to be "deconstructed."

An artwork, in this view, is understood to be an object fashioned from other objects — often other works of art. Sherrie Levine, for example, takes photographs of well-known photographs and paints well-known paintings. The content of her work, she says, is "the discomfort you feel in the face of something that's not quite original." She's created a new thought for the object, though the thought appears to be in a distinctly minor key. Levine, by the way, has said of Koons, "His objects are presented with all the ingratiating enthusiasm of a quiz-show host whose prizes reveal an extraordinary consistency beneath their apparent variety."

A quiz-show host? How can the same artist call our sense of reality into question and jolly us along with ingratiating enthusiasm? Where does Jeff Koons stand? What are we to think of his basketballs frozen in amniotic fluid, his towering vacuum cleaners, the infamous stainless steel bunny he copied from an inflatable bath toy, right down to the squeaky creases? What are we to think of his brief marriage to an Italian porn star known as Cicciolina? Koons seems to represent the reductio ad absurdum of appropriation art — what he sought to incorporate has, in fact, incorporated him. In the new generation of artists, according to Koons' contemporary Haim Steinbach, "there is a stronger sense of being complicit with the production of desire, what we call beautiful seductive objects, than being positioned somewhere outside of it." In Jeff Koons, the collapse of critical space implied by Warhol has become complete.

Jeff Koons' appeal was filed June 27, 1991. By this time Koons had managed to get himself in even deeper trouble. Back in April he had sent his artist's proof of "String of Puppies" to Berlin for an exhibition, in direct violation of the court order requiring the surrender of infringing materials. He seemed determined to flout the rules, out of a militant hostility to convention or perhaps sheer arrogance. Judge Haight found Koons to be in civil contempt, and slapped on a fine of $500 per day until such time as the sculpture was returned. Soon enough "String of Puppies" found its way to a warehouse in New York, where it remains to this day. The work's owner of record is now Art Rogers.

In his appeal, Koons' new attorneys, Michael Rips and Frank Wright, made the fair use argument that had not been made before. It was an argument, they conceded, that had never been made before. "For the first time," the appeal stated, "this Court must attempt to reconcile the fair use doctrine with various widely recognized elements of what is called the post-modern art movement. More so than their traditional forebears, post-modern artists incorporate in their works existing art and commercial images, thereby putting these artists on an apparent collision course with the Copyright statute. Appellants submit that whereas here it is widely recognized that the artist has an identifiable critical purpose for using existing images in his works of art and transforms those images so as to effect that purpose, the fair use doctrine must be flexible enough to encompass and thereby not discourage these new and legitimate art forms."

This plea to extend the domain of fair use was not unprecedented. As recently as the mid-1950s, for example, parody was not protected as a fair use, even though parody is an art form that cannot function without appropriation. In a 1964 case involving a Mad Magazine parody of the Irving Berlin song "The Last Time I saw Paris" (the Mad version was "The First Time I Saw Maris"), the Second Circuit Appeals Court accepted Mad's lifting of the Berlin tune and some of the lyrics as a fair use. The court articulated what is called "the conjure-up doctrine," which stipulates that a parodist may use as much of the original as he needs to conjure it up, but no more. The doctrine has continued to serve as a shield, though not a very trusty one, for parodists. Fuzzy tests like this one have allowed judges in copyright cases to indulge their own values and aesthetic preferences as they can in few other areas.

But "String of Puppies" failed to satisfy the criteria for parody on two grounds. First, it lacked the spirit of raillery which is the special mood of parody. The image was too nightmarish to be funny. It was some sort of critique, but the attitude of the artist was too opaque, or too ambivalent, to easily identify. Second, and more important, the copy wasn't a critique of the original. How could it be? Since the viewers had never seen the original before, they couldn't know what was being parodied. Judge Haight had written that fair use protects only commentary "specifically addressed to the copyrighted work."

Roger's lawyer, Donald Prutzman, focused on this issue in his reply to Koons' appeal brief. He argued, "Absent a satiric purpose to make a point, at least in part, by comparison with a well-known original, there is no need for Koons' sculptures to 'conjure up' the original's protected expression" Koons' logic would permit rampant appropriation, since the artist would no longer need to prove the indispensability of the copyrighted object to his artistic ends. He would only have to assert that it helped him achieve his goal.

Koons' lawyers argued that the sculpture was, in fact, "a direct comment on and criticism of the Rogers notecard," since the card was "representative of" the kind of mass-produced imagery that is the subject of Koons' critique. The copying was needed to summon up the mass-produced sensibility embedded in the card, and Koons' subtle transformations produced the critique. The argument focused not so much on the indispensability of the original as on the validity of the secondary work. If the artist is working in a valid tradition, and has "an identifiable critical purpose for using existing images," then the fair use doctrine "must be flexible enough" to protect his work.

The battle was now joined at its deepest level. If Rogers won, the kind of art that people like Koons did — possibly the kind of work that artists since Picasso have done — could be disabled. Artists would have to ask permission to appropriate an image, and go elsewhere if permission were denied. Copyright law might replace Jesse Helms as the bugaboo of avant-garde art. But if Jeff Koons won, photographers and illustrators and graphic designers would be helpless before the claims of artistic license. Anyone calling himself an artist could steal their work.

It was a hard issue; but only if you took Koons' intentions seriously. The Appeals Court did not. "The copying was so deliberate," the court wrote, "as to suggest that defendants [Koons and Sonnabend] resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism."

The court found that Koons had copied not only the "idea" of the photograph, but its "charming and unique expression." (Judges apparently consider charm a special attribute of art.) The fact that Koons had made "small changes here and there" was irrelevant, since only where "the points of dissimilarity exceed those that are similar" can there be a finding of no infringement. And the three-judge panel virtually repeated the language of the Rogers' brief in concluding that the Koons sculpture was not a parody of or comment on the Rogers photograph, and thus could not be privileged as a fair use. "It is not really the parody flag that appellants are flying under," the court wrote, "but rather the flag of piracy."

What about market harm? Rogers had been unable to establish any actual harm save for the loss of a modest copyright fee, though he claimed that the sculpture had damaged his potential to license the photograph for three-dimensional rendering. Koons had pointed out that Rogers had taken photographs for 25 years without ever availing himself of this market. But the court concluded that "it is obviously not implausible" that if Jeff Koons could find reason to make a sculpture out of "Puppies," someone else could as well. Koons also argued that two such different works could scarcely compete in the same marketplace, but the court observed that commercially marketed photos of "String of Puppies" could damage the market for the notecards. It was hard to avoid the conclusion that the judges had it in for Jeff Koons.

If Rogers v. Koons put art on a collision course with copyright law, as Koons' appeal put it, then copyright law won. People who are inclined to identify with Art Rogers — people who produce images for a living, but think of themselves as "professionals" rather than artists — feel that their rights have been vindicated. "Why should I go unrecognized and put down for having created the thing that he uses as a supposed art work?" asks Clare Ultimo, a graphic designer. The whole idea that special rights accrue to people who call themselves artists infuriates her. "We're cogs in a machine," she says; "but so are they. They have agents, they hustle, they jump around the galleries." Why should they be able to steal bread from her table?

But if copyright law won, then art lost. Art would probably not have chosen a self-aggrandizing space cadet like Jeff Koons to represent her if she had a choice; but if artists have rights, then even Koons must have a share in them. The fact that his work is off-putting and bizarre, and even the fact that it seems to be valued out of all proportion to its merits, should not count against it. The First Amendment, after all, covers speech that is stupid and senseless as well as speech that is sublime. And the right of artists to create what they wish is, in the end, a First Amendment right — a right belonging both to the individual who wishes to speak, and to the public who benefits by hearing him.

Koons himself is now under assault from all sides. Rogers' success has emboldened other copyright holders whose work he has used, and several of them have much deeper pockets than Rogers. MGM-Pathe is suing over Koons' use of the Pink Panther figure; United Feature Syndicate is claiming infringement on Koons' appropriation of Odie, a cartoon dog. And another commercial photographer, Barbara Campbell, has sued over Koons' use of her picture for his statue "Ushering in Banality." John Koegel insists that Koons remains a white-hot commodity, but he concedes that his new work, whenever he should produce it, "will be carefully scrutinized by me and by others to make sure there is no problem." The idea that an artist should need to have his work vetted by his lawyer is not a pleasant one.

Koons has pretty much run out of legal options. In October the Supreme Court, to no one's surprise, refused to take the case on appeal; the court has yet to hear a copyright case that turns on the issue of parody. Koons has also parted ways with Sonnabend Gallery, which so far has refused to cover any portion of his court costs, and which may decide to settle with some or all of the plaintiffs. Koons himself, at last report, was traveling in Germany, and then in Greece, and then in Germany again. He was, said Koegel, too upset by the whole affair to discuss it any further.