United States: Art Appropriation Redux

Last Updated: January 6 2016
Article by Joshua J. Kaufman and Thai Nguyen (Summer Associate)

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 works were "fundamentally different and new." The Court also found that the law imposes no requirement that a work comment on the original, or its author, in order to be considered transformative; and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. The court further held that the more transformative a new work is, the less important the other four fair use factors become. The court broke new ground in finding fair use when it stated,

[whose decision of no fair use it over turned] based its conclusion that Prince's work is not transformative in large part on Prince's deposition testimony that he "do[es]n't really have a message," that he was not "trying to create anything with a new meaning or a new message," and that he "do[es]n't have any ... interest in [Cariou's] original intent. On appeal, Cariou argues that we must hold Prince to his testimony and that we are not to consider how Prince's works may reasonably be perceived unless Prince claims that they were satire or parody. No such rule exists, and we do not analyze satire or parody differently from any other transformative use.

It is not surprising that, when transformative use is at issue, the alleged infringer would go to great lengths to explain and defend his use as transformative. Prince did not do so here. However, the fact that Prince did not provide those sorts of explanations in his deposition which might have lent strong support to his defense is not dispositive. What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so. Rather than confining our inquiry to Prince's explanations of his artworks, we instead examine how the artworks may "reasonably be perceived" in order to assess their analysis is primarily on the Prince artworks themselves, and we see twenty-five of them as transformative as a

In essence the court held that even if the artist does not claim the work is transformative if the judges think the public will that is enough. The Second Circuit's analysis, as a result, greatly broadens judges' discretion of what is transformative and thus what is a fair use.

In California there is an instructive case of an artist, Derek Seltzer (Seltzer v. Green Day, Inc., 725 F.31 1170 (9th Cir, 2013)). The Ninth Circuit, found that Green Day's use of the artist's drawing in its video backdrop was protected by fair use. In Green Day, artist Derek Seltzer created an art work entitled Scream Icon and arranged posters of it on walls across Los Angeles as street art. Green Day's set designer happened to come across the artwork, photographed it, and later used it in the band's video backdrop. The Scream Icon was modified for the video, and other artists were featured further altering it, as the video played. Seltzer sued for copyright infringement.

In ruling for Green Day, the court emphasized that the band's use was sufficiently transformative because different colors, contrast, a brick background, and a superimposed red crucifix were added to the artwork. Moreover, the video's message of religious hypocrisy had nothing to do with the Scream Icon's original meaning. Even though the Scream Icon was concurrently used with the band's concerts, this was only "incidentally commercial," because it was not used to promote the concerts or merchandise. Because Green Day's use conveyed "new information, new aesthetics, new insights, and understandings," it was transformative and fair.

In Wisconsin there is another case, Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), where the court took a different approach to fair use then did the Cariou and Green Day courts. In Kienitz, the Seventh Circuit openly criticized the Second Circuit's interpretation of the Fair Use Doctrine in Cariou. Here, Michael Kienitz photographed Madison, Wisconsin mayor Paul Soglin, and subsequently posted that photograph on the city's website. Apparel company Sonnie Nation, LLC ("Sonnie Nation") downloaded the Mayor's photograph from the website, altered its color and details, and printed the new image onto t-shirts with the phrase "Sorry for Partying."

Relying in part on Cariou, the district court ruled in favor of Sonnie Nation based on the t-shirt's transformative nature. The Seventh Circuit affirmed, but on different grounds. It warned that the Second Circuit's interpretation of fair use compromises, and possibly eliminates, a copyright holder's statutory right to prevent others from making derivative works. Instead, the Seventh Circuit opted to "stick with the statutory list, of which the most important usually is the fourth [factor] (market effect)" to find fair use. The court did find fair use but looked at all four factor in the statue to arrive at its conclusion. The take away is if one is going to appropriate someone's artwork New York and California are the places to be sued in.

In terms of the use of an individuals' likenesses, we deal with the Right of Publicity, which unlike copyright, is at least supposed to be uniform across the country. The Right of Publicity is governed under individual state statutes or common law. Generally speaking, the courts have favored artists in this area, although not universally. It is important to note that courts have often found distinctions between the use of a celebrity's likeness in fine art when used on an original, limited edition or print versus licensing the same artwork found on commercial products. Certain courts do not find a distinction, once they find the use to be a fair use under the Right of Publicity for the underlying art it doesn't matter on what product it is put on. Others courts have taken a more "First Amendment" expressive speech approach and have carved out exceptions to the Right of Publicity but only for fine arts not for licensed goods. Below is a review of four of the leading cases in the area.

In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (Cal. 2001) the Supreme Court of California ruled against artist Gary Saderup for producing lithographs and T-shirts bearing the likeness of The Three Stooges.

To continue reading this article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions