Jeff Koons is getting mixed signals from the American legal system. He’s an artist known for “appropriating” pop culture in his art—that’s infringing copyright to some, fair use to others.
In 1992 a photographer sued Koons for creating a statue of his photograph of two people with a line of puppies crossing their laps. Koons exaggerated the dogs’ features, turned them blue, added flowers, and called it “Banality.” The judge didn’t buy that this was different enough, or parody, and Koons lost the case along with some of the $300,000 he’d sold three statues for. It was a mixed verdict for the photographer—he won the case, but legally speaking, it seems his work really was banal.
Then, in 2005 Koons ran up against another photographer, this time over a piece called “Niagara,” which used the photographer’s advertising image of women with Gucci sandals against a bright and disturbing surreal background. This one passed muster—the judge held that this was transformative enough to be fair use.
So, as Mr. Koons might himself ask, what gives?
Fair use is a strange part of law where judges have to be art critics—and economists, technologists, and historians as well. Like free speech, fair use isn’t defined on purpose. You’d no more want a list of “fair uses” than you’d want a list of “free phrases” defining speech, because no one writing a law could anticipate all the uses possible. Instead, the law trusts judges to be smart.
The problem is judges aren’t being so smart these days. This is caused by there being so much more to know about art, technology, economics, and so on, and not the result of some popular-but-IQ-reducing robe detergent.
In the last few years judges have decided how small you have to shrink a photo to index it in a search engine, what the market value of Seinfeld trivia is, and even what the literary heart of J.D. Salinger’s unpublished letters is. It’s too much to ask, and they need help. Fair use is a 33-year-old law, and we’ve invented a couple things since then—it’s time lawmakers got out of the 70s and did some updating.
Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.
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