Intellectual Property Keyed to Merges
Blanch v. Koons
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Koons (Defendant), a well-known visual artist, was commissioned to create a series of seven billboard-sized paintings for $2 million. He is known for taking objects and images from popular media and consumer advertising and incorporating them into his artwork, a practice referred to as "neo-Pop art," or "appropriation art." In the creation of one of the paintings, titled "Niagara," Koons (Defendant) used part of an ad that he had seen in Allure magazine. The ad, titled "Silk Sandals," a photograph taken by Blanch (Plaintiff), a professional photographer, shows a woman's lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man's lap in what appears to be a first-class airplane cabin. Defendant scanned the image into his computer and incorporated a version of it into "Niagara." He included in the paining only the legs and feet from the photograph, leaving out the background of the airplane cabin and the man's lap. He inverted the orientation of the legs so that they dangle vertically downward above the other elements of "Niagara" rather than slant upward at a 45-degree angle as shown in the photograph. He added a heel to one of the feet and changed the coloring of the photograph. The legs from the ad are second from the left among the four pairs of legs that form the focal images of "Niagara," which depicts four pairs of women's feet and lower legs dangling prominently over images of trays of convections with a glassy field and Niagara Falls in the background. Defendant did not seek permission from Plaintiff or anyone else before using the image. Plaintiff sued Defendant, claiming that Defendant had infringed her copyright in the image. Koons (Defendant) claimed fair use, and the district court granted summary judgment to him. The court of appeals granted review.
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