Rogers v. Koons (1992)
Quick Summary
This case is about copying a photograph to make a sculpture and then claiming fair use. The court said the use was not fair. The artist’s work was commercial, taken in bad faith, and not a true parody of the original photo. The sculpture copied the photo’s protected expression almost entirely, so it infringed.
Issues
- Was copying the photograph to make a sculpture fair use as social commentary or parody?
- Did the sculpture take the photo’s protected expression to an infringing degree?
- How do commercial purpose and market harm affect fair use?
Rules
- Substantial Similarity is the test: would an ordinary observer think the new work took the essence of the original?
- Fair Use looks at: purpose and character (including parody and good/bad faith), nature of the work, amount used, and market effect.
- Even if social commentary is claimed, the use must target the original (true parody) and not simply copy it for commercial value.
Facts (Timeline)
Arguments
Appellant (Koons)
- The sculpture is social commentary on consumer culture.
- It is a parody and therefore fair use.
- Any similarity is justified by the message of critique.
Respondent (Rogers)
- The sculpture takes the photo’s protected expression almost completely.
- The use is commercial and in bad faith.
- It is not a true parody of the photo; it exploits it.
Judgment
Appeal dismissed. The Court of Appeals held that Koons was not entitled to the fair use defence.
- Purpose & character: Commercial, bad faith, and not a parody of the photo itself.
- Amount used: The essence of the photo was taken almost in toto.
- Market effect: Commercial nature meant market harm is presumed.
Ratio Decidendi
The ordinary observer would recognise the copying because the sculpture captured the photo’s distinctive protected expression. Without a clear parody that targets the original, and given the commercial use, fair use fails.
Why It Matters
- Sets a clear warning: close copying + commercial sale + no true parody → likely infringement.
- Shows courts protect the look and feel of photos, not just their ideas.
- Highlights market harm presumption for commercial uses.
Key Takeaways
Ask: would most viewers think the new work captured the heart of the original?
Parody must target the original; general satire is not enough.
Commercial sale weighs against fair use and suggests market harm.
Bad faith copying further weakens the fair use defence.
Mnemonic + 3-Step Hook
Mnemonic: “COPy CAT” — Commercial motive, Observer sees same essence, Parody not targeted → CATch = Infringement.
- Spot the essence: does the new work mirror the photo’s protected look?
- Probe purpose: is it true parody or just social commentary?
- Check commerce & harm: sold for profit? market harm presumed.
IRAC Outline
| Issue | Rule | Application | Conclusion |
|---|---|---|---|
| Is the sculpture a fair use of the photo? | Fair use factors; substantial similarity test. | Close copying of protected expression; commercial sale; not a targeted parody; bad faith. | No fair use. Infringement found. |
Glossary
- Substantial Similarity
- A test asking whether an ordinary observer would find the new work took the protected essence of the original.
- Parody
- A work that targets and comments on the original; different from broad social satire.
- Market Harm
- Loss of actual or potential markets for the original; often presumed in commercial copying.
FAQs
Popular & Recent Post
Comment
Nothing for now