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The Landmark Case of Rogers v. Koons: Appropriation in Art

By Edited Nov 13, 2013 3 2

The legal case of Art Rogers versus Jeff Koons, settled in the United States Court of Appeals for the Second Circuit, marked a turning point in the world of modern art. When Koon’s sculpture String of Puppies was judged a copy of Rogers’ card photograph Puppies, the art world lost. Since modern art is the search for novelty among the ordinarily mundane, the practice of capturing ideas that are open to the viewer’s interpretation, it must be allowed to appropriate other pieces freely so as to transmit a fresh message. Without this form of creativity, art loses an aspect of itself successfully celebrated by the likes of David Salle and Andy Warhol, men who have greatly contributed to the display of human creativity.


String of Puppies

In determining whether or not a work is a copy of another, the courts rely on the substantial similarity test: whether or not an unqualified observer would recognise that one work was appropriated from another already copyrighted work. This kind of legal battle is so subjectively sensitive, and consequently so reliant on the justices’ personal opinion, because it finds its foundation on two of modern society’s defining values: the right to free speech and expression (i.e. the first amendment to the Constitution of the United States) and the right to individual property. Yet an appropriation is not always a clear cut copy. Elements of a work can be used to compose a new one, as described under the fair-use portion of copyright law, provided that the new work is a thoroughly original creation. This is how art based on appropriation is supposed to function, as a legal way of stimulating the art world through parodies or fresh interpretations of known pieces. In the case of Rogers and Koons, though it may be said that String of Puppies is indeed similar to Puppies, would it not be a stretch to say the sculpture is a copy of the photograph? Is it even possible for a sculpture to be considered a copy of a photo? Though Koons gave his sculptors precise instructions to keep to the composition of the photo, he also went to great lengths to specify the particular aspects he wanted modified. In my opinion, the fact that the two pieces are even physically similar is besides the point as modern art is an expression of the artist in question’s idea and message, which in this situation are polar opposites.

In addition, the messages transmitted by Roger's Puppies and Koons's String of Puppies are vastly different, even conflicting. The former is a perfect example of the kitsch “Americana” genre. His photograph has no lasting emotional value; Rogers simply made sure the light was right and captured a literal, inexpressive recording of two people holding eight puppies between them. When a viewer glances at the photograph, he sees only the smiles of the couple and the simple joy they emanate. Yet upon studying the image, one realises that it is a sickly show of false, shallow happiness, the kind so very common in the domain of the mass-produced, which reflects not an actual feeling or human individuality but the necessity when being photographed. To quote James Traub: “...it's sort of a depressing photograph, in the sense that it makes you feel a little bit less alive than you were before you picked it up.”

On the other hand, String of Puppies does send a strong, clear message. Though the sculpture is definitely not a direct parody of Puppies as Koons stated in the trial, since the latter work is not known enough to be the subject of parody, it is certainly a powerful critique of exactly the kind of triteness that this image represents. Koons’ piece mocks the world of mass produced “junk,” or “cupcakes” to which he believes Rogers’ photograph belongs by  accentuating its’ all-round cuteness. The dogs have become explicitly unreal, by making them blue and emphasising the flatness of their noses, and the owners also been vividly painted with absurdly impossible colours.  What the critic saw behind the joyful facade of Puppies is what Koons has sculpted and enthroned; the lifelessness lays bare of its protective coating of false emotion. Obviously, the idea behind the sculpture is totally removed from the card picture.



In addition, the fact that Rogers probably sued primarily because Koons had made 375,000$ on his sculptures raises doubt in my mind whether or not this case has a legitimate leg to stand on. If Koons hadn’t sold his pieces for so much, would Rogers, the humble craftsman who takes photos for a living, have acted the same way out of a sense of honour, or would he have baulked in the face of legal fees and perhaps the doubt that the court would not have enough evidence to see things in his favour? Certainly there was no damage done to sales of cards with Puppies pictured on them, as these two artists deal to unquestionably separate market segments. Personally, this pursuit of likely undeserved money on Rogers’ part strips away any tendency I would have had to see his side of the argument.   

            In conclusion, in the case Rogers v Koons, a thoroughly uninspired photographer and his equally bland photograph, Puppies, bested a creative artist and his masterfully evocative work. Original human thought and its expression was seen by the courts as wanting in the face of the mindless churn of the mass-media machine. Money lust also played its part and in the end caused a judgement that has restricted the possibilities for fresh conception. It is important to remember that copyrights should deal with original ideas, not with the mode of expression of these ideas. It is my firm belief that Koon’s work String of Puppies is a perfectly fair example of appropriation, and that he should have been protected by the United States' fair-use laws.



May 12, 2013 9:51am
Hi--As a person who has written lots about art, I truly enjoyed your article. It is well written and certainly thought-provoking. Thus, two thumbs from me and yep...a rating.
May 12, 2013 10:00am
Thank you very much
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