Blanch v. Koons
467 F.3d 244 (2d Cir. 2006)
SACK, Circuit Judge:
This appeal presents the question whether an artist's appropriation of a copyrighted image in a
collage painting is, under the circumstances, protected "fair use" under the copyright law. See 17
On commission from defendants Deutsche Bank AG, a German corporation ("Deutsche Bank"),
and The Solomon R. Guggenheim Foundation, a New York not-for-profit corporation ("Guggen-
heim"), defendant Jeff Koons created a collage painting, initially for display in Berlin, Germany, in
which he copied, but altered the appearance of, part of a copyrighted photograph taken by the plain-
tiff Andrea Blanch. After seeing the painting on subsequent display at Guggenheim's museum in
New York City, Blanch brought this action for copyright infringement. The district court (Louis L.
Stanton, Judge) granted summary judgment to the defendants on the ground that Koons's appropria-
tion of Blanch's photograph was fair use. We affirm.
Jeff Koons is a visual artist. His work has been exhibited widely in museums and commercial
galleries and has been the subject of much critical commentary. He is known for incorporating into
his artwork objects and images taken from popular media and consumer advertising, a practice that
has been referred to as "neo-Pop art" or (perhaps unfortunately in a legal context) "appropriation
His sculptures and paintings often contain such easily recognizable objects as toys, celebrities,
and popular cartoon figures.
Koons has been the subject of several previous lawsuits for copyright infringement. In the late
1980s, he created a series of sculptures for an exhibition entitled the "Banality Show" ("Banality").
In doing so, he commissioned large three-dimensional reproductions of images taken from such
sources as commercial postcards and syndicated comic strips. Although many of the source images
were copyrighted, Koons did not seek permission to use them. In separate cases based on three dif-
ferent sculptures from "Banality," this Court and two district courts concluded that Koons's use of
the copyrighted images infringed on the rights of the copyright holders and did not constitute fair
use under the copyright law. See Rogers v. Koons, 960 F.2d 301 (2d Cir.), cert. denied, 506 U.S.
934, 121 L. Ed. 2d 278, 113 S. Ct. 365 (1992); Campbell v. Koons, No. 91 Civ. 6055, 1993 WL
97381, 1993 U.S. Dist. LEXIS 3957 (S.D.N.Y. Apr. 1, 1993); United Feature Syndicate v. Koons,
817 F. Supp. 370 (S.D.N.Y. 1993).
The present action arises in connection with a later series of Koons's work entitled
"Easyfun-Ethereal." It was commissioned in 2000 by Deutsche Bank in collaboration with Guggen-
Deutsche Bank and Guggenheim have jointly established the "Deutsche Guggenheim Berlin,"