Collage and Copyright : Fair Use, Appropriation Art?

I am posting this pic without permission. But here is the credit:
Niagara, 2000. Oil on canvas, 120 x 172 inches. Deutsche Guggenheim.

I read this today in my never ending search to bring important collage information to the forefront of my mind and yours...

I am copying the entire text from this article since I want to be able to refer to it often.

"2nd Circuit Affirms Fair Use With Collage Containing Copyrighted Photographs
December 21st, 2006 by Nick Smallwood
On October 25th, 2006, in Blanch v. Koons, the U.S. Court of Appeals of the Second Circuit ruled on an important case dealing with the fair use of copyrighted material in an artistic, “collage” setting, affirming that artist Jeff Koons’ incorporation of a photograph into a collage painting was fair use.

Jeff Koons, an “appropriation artist“, created a collage entitled “Niagara” which depicts four pairs of women’s legs with the feet pointing downwards superimposed over images of “confections … with a grassy field and Niagara Falls in the background.” In his collage, one of the sets of legs in the painting was originally part of a photograph taken by a professional fashion and portrait photographer, and published in Allure magazine in 2000. Koons described his work as using popular images for commentary on the “social and aesthetic consequences of mass media.” The work was commissioned by Deutsche Bank and the Guggenheim Museum.

In ruling that Koons’s use of the legs from Blanch’s copyrighted picture constituted fair use, the Second Circuit went through a detailed explanation of the four-factor fair use test: the purpose and character of use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effects on the actual or potential market for the work or its derivatives.

Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”

The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.”

The remaining factors used by courts in these cases—dealing with the nature of the copyrighted work, the amount and substantiality taken, and the effect on the market—all also weighed in Koons’ favor or were deemed unimportant in this case."

Another spin on this article can be found here at NEWSgrist, and you can see the piece of art that is being discussed.

side note to myself: Appropriation Art??? Is that what I am? An Appropriation artist? Sounds very unglamorous... more like a business. "I need to appropriate this and do this with it..."
Hmm. that is my logic. The textures, lines, colors, and design of papers are my paints. I have appropriated pieces of paper and given them a new use, my paint. back to the issue at hand.

I really liked this quote: from NewsGrist/Artnet News

In his affidavit in the case, Koons noted that it was important to use the photo from Allure, rather than painting a model’s legs himself. "My paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience. . . . Therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness." [emphasis mine]

Interesting stuff.

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