Today in Copyright we discussed parody. In each of the three cases we discussed, the defendant made a claim of fair use. I generally agreed with the courts in each case, but was flabbergasted when some of my classmates leaped to the defense of Jeff Koons, a modern sculptor who used a copyrighted photograph of two people holding some puppies as the basis for his work "String of Puppies." The case is here, but for those of you at home, here's the Jeff Koons method to obtain artistic success and profit:
1. Decide consumer culture is banal and a negative influence on society.
2. Find an example of consumer culture (a postcard sold in a shop depicting a couple holding their eight German Shepherd puppies) and buy it.
3. Tear the copyright symbol off the card and mail it to your crack squad of Italian artisans. Instruct them to render the image from the photo in three dimensional format.
4. Monitor the progress of the artisans in creating four polychromed wood sculptures. Repeatedly correct them as to your artistic vision and instruct them to render the positions of the figures, level of detail, and expressions on the subjects' faces "just like photo!"
5. Import Italian sculptures to New York and display one in a gallery, claiming that it parodies the banality of our culture.
6. When sued by the copyright holder for infringing on his art by making an exact reproduction of his expression in another medium and selling copies of it for over $100,000 each, disregard a court order to turn over the remaining copy of the sculpture and ship it to Germany on the sly.
Despite the many questionable elements here, some of my classmates thought this was a permissible parody, despite the fact that Koons was parodying not the specific work (the photo), but society in general, that he could have done so with equal effectiveness without using a preexisting copyrighted image as a basis, that the only transformative element of the parody was to render it in another medium and place it in a museum, and that Koons acted in bad faith at almost every step of the process (a factor which often militates against a finding of "fair" use).
One woman claimed that her perspective had been deeply altered by the confrontation Koons forced with his work. Another student didn't think it should matter that the photo itself could not be recognized as the object of the parody (although the necessity of borrowing recognizable material for a parody is one of the reasons the courts typically give wide latitude in such cases). The mind boggles.
Then again, on the other side of the spectrum, after class one fellow confided that he didn't think 2 Live Crew's parody of Pretty Woman should be considered fair use because 2 Live Crew did not have the well articulated parodic purpose argued in its briefs in mind when they created the song. I thought it was obvious that 2 Live Crew's song could be considered a brutal juxtaposition of the idealistic and romantic Orbison song with the reality of street life and street interactions, but perhaps all these are matters of taste.