Copyright and Fair Use 2
Anchor Standard 2: Organize and develop artistic ideas and work.
Enduring Understanding: Artists and designers balance experimentation and safety, freedom and responsibility while developing and creating artworks.
Essential Question(s): How do artists and designers care for and maintain materials, tools, and equipment? Why is it important for safety and health to understand and follow correct procedures in handling materials, tools, and equipment? What responsibilities come with the freedom to create?
7th Grade: Demonstrate awareness of ethical responsibility to oneself and others when posting and sharing images and other materials through the Internet, social media, and other communication formats.
8th Grade: Demonstrate awareness of practices, issues, and ethics of appropriation, fair use, copyright, open source, and creative commons as they apply to creating works of art and design.
High School:
Proficient – Explain how traditional and non-traditional materials may impact human health and the environment, and demonstrate safe handling of materials, tools, and equipment.
Accomplished – Demonstrate awareness of ethical implications of making and distributing creative work.
Advanced – Demonstrate understanding of the importance of balancing freedom and responsibility in the use of images, materials, tools, and equipment in the creation and circulation of creative work.
Advanced – Demonstrate understanding of the importance of balancing freedom and responsibility in the use of images, materials, tools, and equipment in the creation and circulation of creative work.
Now, let's look at how complex copyright law can become by looking at a court case involving art.
Rogers v. Koons
The first case we will look at revolves around a black and white photographic image on a postcard. in 1980, the photographer Art Rogers was asked by a friend, Jim Scanlon, to photograph a litter of eight German Shepherd puppies. Rogers had Scanlon and his wife sit on a bench while holding all eight puppies on their laps for the composition. Rogers published the photo, which he called Puppies, in a local newspaper and displayed it along with other photos in an exhibit at the Museum of Modern Art in San Francisco. In 1984, Rogers licensed the photo to Museum Graphics, a company that would print it as a notecard.
In 1986, the artist Jeff Koons began developing a series of sculptures which he called his "Banality Show." In late 1987 or 1988, Koons purchased at least two of the postcards featuring "Puppies." Koons sent one of the postcards with his notes about a sculptural form to Demetz Arts Studio in Italy. The studio made an edition of three sculptures, which Koons titles String of Puppies, for display along with an artist's proof (which Koons could sell later on) following Koons' instructions. The sculptures were made from wood and painted with different colors.
In December 1988, Koons exhibited String of Puppies at the Sonnabend Gallery. He sold two of the edition for $125,000 each and the third for $117,000. Koons kept the artist's proof. Rogers was informed about the sculpture by Scanlon, who was told by a friend who saw a picture of the sculpture in the Los Angeles Times. Rogers filed a lawsuit against Koons on October 11, 1989.
The court decided that Koons' sculpture was too similar to Rogers' photo and, therefore, a copy. Since Koons did not get permission from Rogers to use his photo, Koons pointed to the Fair Use clause to defend his actions. The court then had to look at the four factors of the Fair Use clause to determine whether Rogers' copyright was infringed upon.
Regarding the first factor, the court decided that Koons' intentions for his sculpture was commercial. Koons was not using Rogers' photo to educate an audience so much as to make money. So, Koons' work did not meet the first factor.
Regarding the second factor, fair use is more likely to be found with regard to non-fictional works than with fictional, creative works. Since Rogers' photo was intended to be a creative work, Koons could not successfully argue for fair use with the second factor.
Regarding the third factor, the amount of the original work used, Koons could not defend his actions because he essentially used the photo in its entirety. Working in a different medium for his work did not matter.
Regarding the fourth factor, the affect on the market value of the original work, the court decided that Koons' copies could negatively impact Rogers' ability to license his image for future work (such as a sculpture). Rogers, as the copyright holder, should have control over any licensing of his image.
The court decided in favor of Rogers but did not make a decision regarding monetary damage. After the court case, Rogers and Koons came to a confidential agreement concerning any monetary matters.
You can read a brief summary of the 1992 case on the Copyright Office website here.
You can read a longer, more thorough examination of the case here.
In eight to ten complete sentences, summarize the case of Rogers v. Koons.
If you were Art Rogers, would you have pursued this lawsuit? Why or why not?
If you were Jeff Koons, would you have fought this lawsuit? Why or why not?
You walk into an art gallery and take a photograph of a painting that you like in the exhibit. You then post that photograph on social media for your friends to see.
Is it possible that you are infringing on the painter's copyright?
The short, simple answer is yes. When you photographed the painting, you made a digital copy of that work. Had you kept it on your phone and not shared it, no one other than you would know. When you shared your photograph, you distributed your copy of the work to others.
The longer, more complex answer is still yes; however, the painter will probably not pursue you in court, especially if you give the painter credit for their work. If the gallery included signs stating that photography is not allowed, it could mean that the painter is protective of their copyright and could pursue you in court if they discovered your photograph of their work. If the painter is allowing photographs, they may be open to viewers photographing and sharing images of their work so that others will be made aware of their existence. Many artists are not concerned about these copies, because they can become advertisement of their work. That does not mean that they are no longer the copyright holders of their own work. It only means that they are not going to pursue their rights in court. With the wide distribution of images on the internet, more and more artists are willing to allow others to photograph their work, especially if they give them due credit for that work.
Answer these questions with 2 to 4 complete sentences:
Is a photograph potentially a copy of an artwork?
If a gallery, museum, or or other institution states that photography is not allowed, what might that mean?
How can you responsibly share photographs of another person's work?
Choose one of your own pieces for which you used one or more reference photos and defend your use of someone else’s photograph. You will need to address all four factors that make up the Fair Use clause.
