Guggenheim Foundation Wins Second Circuit Appeal in Copyright Infringement Suit

November 22, 2006

Cleary Gottlieb won another victory for the Solomon R. Guggenheim Foundation last month when the Second Circuit Court of Appeals affirmed the foundation’s prior summary judgment victory in a copyright infringement lawsuit involving a Jeff Koons painting that the foundation commissioned and exhibited in 2000-2002.

The foundation, Deutsche Bank and contemporary artist Jeff Koons were accused of copyright infringement by a former fashion photographer, Andrea Blanch, in connection with Koons’ painting “Niagara,” which the foundation and the bank commissioned for exhibition at their Deutsche Guggenheim museum in Berlin. involving a Jeff Koons painting. Koons created “Niagara” by painting a collage of recontextualized images he had gathered from advertisements, retail displays and magazines. Blanch alleged that Koons had unlawfully copied her photograph, which had been published in Allure magazine. It depicts, among other things, a female model’s legs and feet, shod with gold Gucci sandals. Koons had used this photograph in his painting, but argued he was permitted to do so on “fair use” grounds.

Last year, after discovery, Manhattan U.S. District Judge Louis Stanton awarded the defendants summary judgment based on the fair use doctrine, concluding that Koons’ “transformative” use of a relatively non-creative fragment of Blanch’s photograph in a portion of “Niagara” did not infringe Blanch’s copyright. Last month, the Second Circuit rejected Blanch’s appeal, finding that the copyright law’s goals of promoting the progress of art and science would be better served by allowing Koons’ use of her photograph in “Niagara” than by preventing it.