In 1988, Jeff Koons unveiled his “Banality” series to gallery audiences in three locations across the world. The exhibitions consisted of a series of porcelain and wooden sculptures based on photographs and other archetypal objects. Several of the sculptures included famous characters from a specific era (the Pink Panther and Odie from Garfield) and others were based on relatively unknown photographs. Koons, who created three editions of each piece, ended up netting millions of dollars in sales of the work over time.

Though the artist said the works were satire, not everyone was laughing—especially not the artists who created the source material appropriated by Koons without permission. The “Banality” shows spurred five lawsuits, some decades after the original exhibit. One is pending today, almost 30 years after the show, while another settled out of court. Koons lost the remaining three, with courts finding him liable for copyright infringement and rejecting his fair use defense: that he was parodying the source material.

But importantly for the art world, the cases produced by the “Banality” shows resulted in judgements that have helped to define when artists can and cannot use the work of others for their own pieces, making a lasting impact on copyright law.

 

A String of Puppies

The first lawsuit stemming from the “Banality” shows was filed in 1989, when artist-photographer Art Rogers sued Koons for exhibiting and selling a sculpture of his photograph Puppies, which showed a man and a woman clutching eight dogs. Koons’s defense of his work, String of Puppies (1988), was simple: His transformation from a two dimensional image to a three-dimensional sculpture was completed with the intention to parody and thus, it qualified as fair use, a legal defense to copyright infringement.

Koons and his lawyer argued that the artist believed “the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically on both the incorporated object and the political and economic system that created it.”

While this gives a viewer something to mull over, it did not amount to a sound legal defense. Implicitly, if accepted, this argument would provide a blanket exemption for copying so long as the resulting work was considered to be a part of a genre of art that parodied society at large. The court accordingly disagreed with the artist’s line of argument, pointing to the fact that the copied work must be, at least in part, “an object of the parody, otherwise there would be no need to conjure up the original work.” The court noted that if the point was to parody society broadly, Koons did not need to use copy Rogers’s work specifically.

On the fair use spectrum, a parody is often afforded broad latitude as a defense against copying, even when the copy is almost exact. The parodical nature of a new work is, however, only one of four broad elements determining fair use. Another is commercial. In deciding against Koons, the court also examined the nature of Rogers’s work in depth, highlighting the fact that Rogers’s main stream of income with respect to his work was derived from licensing it commercially such that if Koons’s copying was a fair use, Rogers’s works would become worthless. Koons had argued that the commercial nature of Rogers’s work should have implied a lower level of protection; that art of critical acclaim should be afforded stronger legal protection.

The court, in its opening statement, indicated that it strongly disagreed with Koons’s view:

The copying was so deliberate as to suggest that defendants 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 Rogers judgment made a clear proclamation that courts would not take a position on artistic credibility. A parody defense would require the parody of the appropriated artwork. Parody would not be allowed as a blanket rationalization for an entire genre of art that commented on broad cultural and societal concepts.

 

Other Lawsuits on the “Banality” Series

In the years after the Rogers case closed, several more of Koons’s pieces from the “Banality” shows became embroiled in legal disputes. Koons lost another case over his piece Wild Boy and Puppy (1988), which clearly reproduced a character from Jim Davis’s Garfield comic strip. The court relied heavily on the precedent set in Rogers v. Koons to find that the sculpture is, “at best, a parody of society at large, rather than a parody of the copyrighted ‘Odie’ character.” Koons was also sued over his reproduction of the Pink Panther in his sculpture of the same name; the case settled out of court.

Even recently, despite years in the spotlight, pieces from the “Banality” series on view as part of a 2014 Koons retrospective at the Centre Pompidou in Paris have prompted fresh litigation. Upon arrival of the artist’s retrospective in France, Koons was served with two lawsuits: one over his piece Fait d’Hiver (1988), which is ongoing, and another over the sculpture entitled Naked (1988). In the latter instance, a French court recently found in favor of the estate of Jean-François Bauret, the deceased French photographer who had taken the photo that Koons based Naked on. Ultimately, the court awarded limited financial damages, as the sculpture was removed from the show before it actually opened at the Pompidou.

Notably, French law does not recognize a concept of fair use as flexible as the one under United States law. Parody is recognized as an exception to copyright infringement in France; however, the definition of parody usually precludes confusion between the original and the new work. In practice, this means that when presented with both works, one must be able to distinguish between the original work and the parody, and identify an element of humor or commentary. In the Naked case, in which Koons attempted to invoke a parody defense, the court noted that because the source photograph was relatively unknown, a defense based upon a comment or criticism wouldn’t hold water.

In cases where he has modified the original work, rather than creating more exact copies, Koons has won copyright infringement lawsuits in which he asserted that he was making a comment on broader concepts. In 2003, the artist was sued over his 2000 work Niagara. The painting appropriated, in part, a portion of photographer Andrea Blanch’s image Silk Sandals by Gucci. Koons took a portion from Blanch’s photo, which showed a set of legs and feet, suggestively posed and donning Gucci sandals, and painted it next to several other sets of legs and superimposed on a fudge brownie and trays of pastries over a landscape. When Blanch sued, the court sided with Koons’s position, holding that his use was transformative in that the images were altered and positioned with other items to elicit a commentary on contemporary lifestyle and culture.

Just as Koons has had an impact on the evolution of fair use law, it seems possible that the cases against him have had an impact on how the artist creates his work. In 2017, Jeff Koons unveiled his temporary Seated Ballerina sculpture which stood in Rockefeller Center. Critics quickly pointed out that it was nearly identical to a figurine of a ballerina by relatively well-known Ukrainian sculptor Oksana Zhnikrup. But there would be no lawsuit. When approached for comment for by Artdependence magazine, a spokeswoman for Jeff Koons LLC stated that the Rockefeller Center sculpture was created with “a license to use” Zhnikrup’s work.

—Jessica Meiselman

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