Blanch v. Koons

Blanch v. Koons
Court	United States Court of Appeals for the Second Circuit
Full case name	Andrea Blanch v. Jeff Koons, Deutsche Bank AG and the Solomon R. Guggenheim Foundation
Decided	October 26, 2006 (2006-10-26)
Citation(s)	467 F.3d 244
Case history
Prior action(s)	Leave to amend complaint, 329 F.Supp.2d 568 (2004); summary judgement for defense, 396 F.Supp.2d 476 (2005)
Appealed from	S.D.N.Y.
Subsequent action(s)	Cross-motions for attorney's fees and sanctions denied, 485 F.Supp.2d 516 (2007)
Court membership
Judges sitting	Robert D. Sack, Robert Katzmann and John Garvan Murtha
Case opinions
Defendant artist's use of portion of plaintiff's photograph in collage was fair use since it transformed it by placing her work in a new context that created new meaning, did not use all of her work and had no impact on the market for it since she had never licensed any of her work and had no plans to. Southern District of New York affirmed.
Decision by	Sack
Concurrence	Katzmann

Blanch v. Koons, 467 F.3d 244, is a copyright case decided by the United States Court of Appeals for the Second Circuit in 2006. Fashion photographer Andrea Blanch sued appropriation artist Jeff Koons for copyright infringement after he used an image of a woman's lower legs taken from one of her photographs in a collage of his own. Koons claimed fair use, arguing he had transformed it sufficiently from its original purpose through his reuse. It is considered a significant case in addressing the latter issue.

Blanch brought the action in the United States District Court for the Southern District of New York after seeing the legs from her image, shot for a 2000 article in Allure, used in Niagara, a collage by Koons exhibited at the Guggenheim Museum in 2001, without her permission. Judge Louis Stanton held for Koons in 2005, finding that three of the four factors used to determine fair use were favorable to Koons and the other one was neutral.^[1] On appeal, the Second Circuit affirmed the following year, with Judge Robert D. Sack writing for a unanimous panel that found Koons's fair-use claim even stronger.^[2] Judge Robert Katzmann, in a concurrence, criticized the court for attempting to assert broader principles rather than limiting its decision to the specific facts of the case, which he believed the better approach.

The case has been contrasted with another suit against Koons 15 years earlier, in which he was found liable by the Second Circuit for infringing a photograph with a sculpture based on it. At that time transformative use, a concept developed in a law review paper by Judge Pierre Leval, then sitting on the Southern District, had not become widely understood and accepted in copyright litigation outside cases involving parody, the context in which the U.S. Supreme Court had accepted it in 1995's Campbell v. Acuff-Rose Music, Inc. Blanch was one of several cases in the mid-2000s where judges of the Southern District and Second Circuit, who hear many copyright cases, reversed that trend and began more broadly accepting transformative use as a defense to infringement claims.

Scholarly commentary has focused on the deference the case showed Koons's stated intent compared to the earlier case. It has also been seen as accepting a postmodern understanding of fair use which gives equal weight to the context of the use and its reception, along with the reuser's intent, in determining whether a use is sufficiently transformative.