Art Appropriation Redux

Art appropriation is back in the news.

Jeff Koons the appropriation artist, the auction house and the consigner of the work are being sued by photographer Mitchel Gray for the use of his photograph in an artwork without permission. This is Mr. Koons' sixth lawsuit for claims of copyright infringement based on the misappropriation of previously existing works. Mr. Koons is 1 for 5 in the previous cases. In this case, Mr. Gray took a photograph of a couple on the beach for a Gordon's Gin ad in 1986.

Later that year, as part of his series Luxury and Degradation, Mr. Koons reproduced the photograph in its entirety and most of the ad with some slight variations (the "Koons Artwork").

The Koons Artwork, and case, raises three issues that anyone who creates or sells art which incorporates third party intellectual property must deal with, specifically copyright claims, Right of Publicity claims and trademark claims. While the Gray lawsuit is limited to copyright claims other questions that are not raised are present in Koons Artwork --- did Koons also violate Gordon's trademark rights and the Right of Publicity of the two models in the photograph? The suit provides us with an opportunity to review the current state of the law in regard to the appropriation of other's copyrightable artwork, trademarks, and likenesses in a new work.

In the last few years, a review of copyright cases shows that the pendulum has swung in favor of Fair Use, particularly in New York and California. There are two cases, in the Court of Appeals in New York - one dealing with art and one not (the Google Books case), which have taken an expansive view towards fair use. The most exciting or troubling (depending on your point of view) art law case is Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). In Cariou v. Prince, artist Richard Prince was sued for appropriating dozens of photographers by Patrick Cariou. Cariou had published black-and-white portraits and landscapes that he took while living in Jamaica. Prince tore photos from Cariou's book and incorporated them into his own artwork, altering them in varying degrees and pinning them to plywood. Prince's work was subsequently featured at a gallery, and Cariou sued. To find fair use, the Second Circuit requires the new work to be transformative that is it "must alter the original with new expression, meaning, or message." The court found Prince's work was significantly different in size, color, and distorted nature, that his...