But he said that artists and their heirs had become much more protective of their copyrights since “the explosion of ancillary merchandise,” including postcards, posters, calendars, umbrellas and coffee mugs sold in museum stores and elsewhere.Īndy Warhol, for example, often used other people’s photographs as sources for his paintings, prompting complaints from several photographers the disputes were settled out of court. Landes, an emeritus professor at the University of Chicago Law School who has written about legal issues involving appropriation art, shared the blogosphere’s view that the business with the bookends made Mr. Koons’s lawyers that his use of the image fell under fair use, in part because the image was part of a larger collage. Koons surprised those who had come to see him as an easy target for copyright suits by winning a case brought by a fashion photographer whose image of a woman’s legs and feet he had used in a painting. Those cases were also settled for undisclosed sums. Koons of violating its copyright on the dog Odie from the Garfield comic strip. Koons lost two subsequent suits stemming from the “Banality” show, one by another photographer and a second by United Feature Syndicate, which accused Mr. Koons and Sonnabend of believing that because they were major players in the art world, they could get away with piracy.) The case was settled for an undisclosed amount. (The three-judge appellate panel was particularly harsh, accusing Mr. Rogers was granted summary judgment, which was affirmed by an appeals court. Koons’s lawyers said that his appropriation of the image constituted fair use, arguing that the sculpture was intended as a parody of the kind of trite, mass-produced sensibility that the photograph represented. Koons as the basis for a sculpture called “String of Puppies.” Shortly after the exhibition he was sued by a photographer, Art Rogers, whose black-and-white photograph of a couple holding eight German shepherd puppies was used by Mr. Koons has had several well-publicized brushes with copyright law, most notably in the wake of his landmark “Banality” show at the Sonnabend Gallery in 1988. Some other products, like the shiny-red balloon-dog Christmas ornaments on sale for $10 on the Urban Outfitters Web site, actually look more like Mr. Byrnes pointed out that there were many balloon-dog products on the market, from key chains to earrings, and questioned why his client had been singled out. Koons’s smaller balloon dogs are for sale on eBay for prices ranging from $7,250 to $12,500. The bookends sell for $30 each, while several of Mr. At the same time, he added, “I’m sure his 10 ½-inch balloon dog is a lot more expensive than this bookend, so how much confusion in the relevant market would there be?” Koons’s lawyers might have a better chance by claiming a trademark violation, asserting that the company or the store was misleading consumers into believing that the bookends were made by Mr. Koons’s version if Imm-Living didn’t specifically copy that, it wouldn’t have violated Mr. Clarida, an intellectual-property lawyer, said that in such a case a judge would probably instruct a jury to filter out the characteristics of balloon dogs in general and focus on what was distinctive about Mr. Koons’s sculpture was based on an object in the public domain, he might have difficulty proving that the bookends violated a copyright. The bookends are also slightly less bulbous than the Koons.Įxperts said that given the objects’ differences and that Mr. Koons’s reflective “Balloon Dog” were a copy. Jamie Alexander, a co-owner of Park Life, and Rod Byrnes, a lawyer for Imm-Living, both rejected the idea that the bookends, which are made of painted resin and come in matte colors unlike Mr. Vogl of the firm Jones Day, sent cease-and-desist letters to Park Life, a San Francisco gallery and store that sells the bookends, and Imm-Living, a Toronto company that manufactures them. Koons’s sculpture also comes in a 10 ½-inch version, comparable in size to the bookends. Koons is now going after two businesses that his lawyers say have violated his intellectual property rights by producing and selling bookends that resemble his famous “Balloon Dog” sculpture, 10-foot-tall versions of which have been exhibited at the Metropolitan Museum of Art and Versailles and acquired by major art collectors. He has been sued for copyright violation four times, losing three of the cases. Over his three-decade career that approach, while helping to make him famous, has also brought accusations of exploiting other people’s copyrighted images. The artist Jeff Koons has developed a distinctive style, and made a lot of money, by appropriating pop-culture imagery and mass-produced objects, from inflatable toys to vacuum cleaners and kitschy greeting cards.
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