UNITED FEATURE SYNDICATE, INC. v. KOONS
817 F.Supp. 370 (1993)
UNITED FEATURE SYNDICATE, INC., Plaintiff, v. Jeff KOONS, Defendant.
No. 89 Civ. 8067 (PKL).
United States District Court, S.D. New York.
March 24, 1993.
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OPINION AND ORDER
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Sonnabend exhibition. Koons commissioned the artisans to create three "editions," or copies, of each sculpture, as well as an "artist's proof" which is not offered for sale but rather is kept by Koons as documentation of his work. On November 19, 1988, the "Banality" exhibition opened at the Sonnabend Gallery.
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368-d of New York's General Business Law; and (4) common-law unfair competition under New York law. The complaint seeks both injunctive relief and monetary damages. Sonnabend Gallery was originally named as a defendant in this action along with Koons. However, Sonnabend Gallery and plaintiff subsequently reached a Settlement Agreement and, on January 19, 1993, the Court, by stipulation of the parties, ordered that the claims in the instant action as to Sonnabend Gallery be dismissed with prejudice. Thus, the only remaining defendant is Jeff Koons.
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judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.
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Koons has asserted in the instant case in opposition to UFS's similar motion for summary judgment.
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of copying. In his deposition, Koons admits that the original design for "Wild Boy and Puppy" came from a color picture of "Odie" that he obtained from an accessible media source, such as a postcard or magazine, and combined with a picture of a stuffed doll. Koons Deposition, at 63-64, 66-67, 91-94.3 Koons instructed the artisan that the sculpture should be made "as close as possible" to the pictures in the collage, which included the "Odie" character. Id. at 93-94. Koons explained that, when he provided the artisan with a picture, he wanted him to treat the picture as "factual" and reproduce that picture as closely as possible so that Koons could maintain control of the final product. Id. Koons also admitted that he did not seek UFS's permission to use the "Odie" character in his sculpture. Id. at 52. Thus, the Court determines that this undisputed direct evidence of copying, by itself, is sufficient to support granting summary judgment in plaintiff's favor on the issue of unauthorized copying.
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works as distinguished from literary works, see Warner Bros. v. American Broadcasting Cos., supra, 720 F.2d at 241-42, the Court finds that the grouping of the "Odie" character with two other images does not create a material issue of fact as to the question of substantial similarity. In Warner Bros., the Second Circuit held that an issue of substantiality similarity exists when significant differences exist between the character in defendant's work and the copyrighted character:
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Maxtone-Graham, 803 F.2d at 1258 (quoting Hustler Magazine, Inc. v. Moral Majority, Inc.,606 F.Supp. 1526, 1532 (C.D.Cal.1985), aff'd,796 F.2d 1148 (9th Cir.1986) (quotation and citation omitted)). In the instant case, while Koons has attempted to raise issues of fact to avoid summary judgment, the Court finds that the material historical facts are not in dispute. Instead, the real dispute focuses on the ultimate conclusions to be drawn from the admitted facts. As noted below, based upon an analysis of these facts, the Court finds that summary judgment in plaintiff's favor on the fair use issue is warranted.
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conjunction with the remaining statutory factors. Id., 960 F.2d at 309.4
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Accordingly, since the "Odie" character is a fictional, imaginative work, the second factor strongly militates against finding the Koons' use of that character in his sculpture constituted a fair use. Moreover, the Court finds that Koons' has failed to raise any genuine issues of material fact with respect to this second factor.
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proof' of "Wild Boys and Puppy" which are already in existence, this limited edition work does not harm UFS's ability to market the "Odie" character. However, UFS need not show actual harm. Instead, the Second Circuit has held that "the owner of a copyright with respect to this market-factor need only demonstrate that if the unauthorized use becomes `widespread' it would prejudice his potential markets for his work." Rogers, 960 F.2d at 312. Applying this principle in Rogers, the Court found likelihood of future harm to the marketing of Rogers' photograph even though the "String of Puppies" sculpture, like the sculpture in the instant case, was limited to an edition of three copies. Id. Moreover, the variations in the medium in which the copy is made does not, in any way, diminish the copyright owner's ability to protect potential markets. Thus, in assessing this fourth factor, "courts do not focus solely on the market for the work itself, but also on the `harm to the market for derivative works.'" New Era Publications, 904 F.2d at 159 (quoting Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234).
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style and expression of the original. Under our cases parody and satire are valued forms of criticism, encouraged because this sort of criticism itself fosters the creativity protected by the copyright law.
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is, at best, a parody of society at large, rather than a parody of the copyrighted "Odie" character. In the wake of the Rogers decision, Koons attempts to argue that the sculpture is, indeed, a parody of the "Odie" figure itself and that there are factual disputes with respect to this issue which preclude summary judgment. This position is in complete contradiction to the undisputed evidence in the case. In fact, Koons concedes this point in his initial memorandum of law in opposition to UFS's motion, prior to the Second Circuit's decision in Rogers:
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potential markets for the "Odie" character. Moreover, based upon the record in this case, no reasonable factfinder could conclude that Koons' sculpture constitutes a parody of the "Odie" character. All of the fair use factors strongly militate against a finding of fair use and defendant has failed to raise any material issues of fact which would preclude a summary judgment determination in plaintiff's favor.7 In sum, drawing all reasonable inferences in defendant's favor, there is no evidence which would allow a reasonable factfinder to rule for the defendant on the issue of copyright liability in the instant case.