Banality and the Law: Copyright, Cupcakes and Koons

junkyardarts February 22, 2011 Comments Off on Banality and the Law: Copyright, Cupcakes and Koons

koons puppies banality series

Who is the ultimate authority on art law?  Is it the art historians?  Is it the artists themselves?  Or is the ultimate authority becoming lawyers and judges in the courtroom?

It’s time for a very special 40K Essay on copyright, cupcakes and Jeff Koons.  Considering David LaChapelle has found himself in a copyright case recently, this essay seems timely as well as informative!  Read on!

In the case of Jeff Koons and his Banality series, it seems as though the courts have personally interpreted what constitutes artistic vision and ignored the art-expert’s arguments.  Though this court may have set a precedent that will be difficult for artists to overcome in regards to freely using reference images (think Shepard Fairey as a recent example), it is the responsibility of the arts administrators to educate the public and the court system of the importance of freedom of artistic expression.

In 1988, Jeff Koons exhibited his Banality series at the Sonnabend Gallery.  The purpose of this exhibit was to show just what the title implies: the banality of daily images we see, and Koons’ artistic interpretation of those daily images.  Koons often collected images to use in future works; a practice common for artists who often make ‘inspiration boards’.  Koons purchased a card that portrayed two adults holding eight German Shepherd puppies, and used it as reference for his String of Puppies sculpture.  The Puppies photograph was taken by Art Rogers and had been licensed out by a card company and included a copyright symbol on the back of the card (not that it matters – fyi, if you made your original work it is automatically protected – you do not necessarily need to file for copyright to claim rights to your work).  Unfortunately for Koons, his decision to use Rogers’ image as a reference for his work sculpture had disastrous results.

art rodgers puppies koons puppies banality series

Rogers photograph was protected under copyright and as such, he had the right to protect the image from infringement and unauthorized use.  Koons was aware that Puppies was protected, not only because every artist knows their own work is protected, but further proved such by cutting off the bottom of the card that held the copyright symbol when he sent it to the Demetz Studio, the company that actually created the Koons pieces (because Koons doesn’t actually fabricate his own works – he sends out ‘inspiration boards’ and instruction to the Studio).  This detail was a major factor in the courts determining Koons’ fault in the case, though the artistic value of String of Puppies, and the testimony from art experts, was ultimately ignored.  With this type of interpretation of copyright law, where any use of a reference image is prohibited whether or not the meaning of the image has been significantly changed, is harmful for artists and their future works.  In addition to the argument that any use of reference should be in violation of a copyright, there were dangerous discussions from both sides of the courtroom during this case.

Koons often stated that Rogers’ work had no artistic value simply because the work he used was a postcard and was ‘visual excess’, therefore it had no intrinsic value.  He also referred to the simple photograph as a ‘cupcake’.  This type of reasoning and arrogant view of what constitutes art is ignorant and harmful.  The argument that an image on a postcard is not ‘art’ implies that nothing that makes it into the public view or isn’t a limited edition shouldn’t be considered worth protecting under copyright.  Under his own view, anyone could take a postcard of his work and use it as a reference for another work, no matter how closely the two resemble each other, and no matter the financial fallbacks.  If a Judge agreed with Koons’ reasoning, it could be detrimental for any artist that chooses to distribute their work widely to the public.

Rogers’ assertion that any and all use of his Puppies photograph is copyright infringement is equally harmful to the rights of artists.  The all-or-nothing attitude of reference work could lead courts to decide that no artist could appropriate any image for their artwork without express consent from the original creator. As noted in Art in the Courtroom, this could harm photographers the most by limiting their rights to photograph many objects and even buildings as this could be copyright infringement.  Ultimately the courts sided with Rogers’, even as the case was officially settled out of court, and this narrow view of copyright law, that ignores the intrinsic artistic expression of the derivative piece, is limiting to artistic expression.

As an art administrator, my argument would be that Koons used an image without the permission of the image creator, though he ultimately changed the meaning of the image through his derivative piece.  Instead of Koons arguing that Rogers’ work was a ‘cupcake’, he simply should have educated the courts of the deep differences between the two and agreed to acknowledge Rogers’ photograph as his reference at the exhibition.  I see no reason why, especially in an exhibit that comments on the banality of daily life, the original postcard can’t be shown next to the new sculpture.  This would only strengthen Koons’ argument and his intentions with the exhibit, and Rogers’ would have his original work acknowledged.  Artists and administrators need to work together to keep artistic expression free while understanding the value of copyrights and the purpose they serve.

Moral of the story?  Don’t be an asshole.  Give credit where it is due, create your art and carry on.


Inde, Villes R. Art In The Courtroom. Westport: Praeger, 1998, Chapter 1: Jeff Koons: Piracy or Fair Use?

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