Rogers v. Koons is a 1992 Second Circuit decision that held sculptor Jeff Koons liable for copyright infringement after he turned Art Rogers’ photograph of a couple holding eight puppies into a polychromed wood sculpture that sold for $367,000. The court rejected Koons’ fair use defense on every one of the four statutory factors and drew a line that still shapes appropriation art today: copying someone’s creative work to satirize society at large is not the same as parodying the work itself, and only the second gets meaningful protection under fair use.
The Photograph and the Sculpture
Art Rogers made his living as a photographer. One of his black-and-white images, titled “Puppies,” showed Jim and Mary Scanlon sitting on a bench with eight German Shepherd puppies in their laps. Rogers licensed the picture for greeting cards and other commercial products.1Justia. Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990)
Jeff Koons came across the image on a notecard while assembling work for a gallery show he called the “Banality Show,” built around the kitsch of consumer culture. He bought at least two copies of the notecard, tore off the portion carrying Rogers’ copyright notice, and shipped the image to artisans at the Demetz Arts Studio in Italy with written instructions that the sculpture “must be just like photo.”1Justia. Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990) The resulting sculpture, “String of Puppies,” reproduced the composition, poses, and expressions of Rogers’ photograph in three dimensions, adding color to the puppies and flowers in the couple’s hair.
Koons produced the piece in an edition of three, plus an artist’s proof, and the three editions sold for a combined $367,000.1Justia. Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990)
The Lawsuit and Koons’ Fair Use Argument
Rogers sued Koons and the Sonnabend Gallery for copyright infringement. He never gave permission for the sculpture, and Koons never asked. Koons admitted the copying. His defense was that the sculpture qualified as fair use under Section 107 of the Copyright Act, which permits limited borrowing for purposes like criticism and commentary.2Office of the Law Revision Counsel. 17 U.S.C. 107 – Limitations on Exclusive Rights: Fair Use
Koons characterized “String of Puppies” as a parody, but not of Rogers’ photograph. He argued the sculpture parodied the broader culture of mass-produced sentimental imagery, using the notecard as a representative example. The photograph, in his framing, was raw material for a critique of materialism and kitsch. That framing became the case’s central battleground. If accepted, it would let any artist copy any popular image so long as they claimed a social message.
How the Four Fair Use Factors Came Out
The Second Circuit found every factor cut against Koons.
On purpose and character of the use, the court treated the sculpture as plainly commercial. Koons made it for a high-profile gallery show and sold it for substantial profit. The court also found bad faith: Koons had removed the copyright notice from the notecard before sending it to Italy and had never approached Rogers for a license. “Knowing exploitation of a copyrighted work for personal gain militates against a finding of fair use,” the court wrote.3Justia. Art Rogers v. Jeff Koons, 960 F.2d 301
On the nature of the copyrighted work, “Puppies” was creative rather than factual, and Rogers depended on it for income. Creative works get stronger protection.
On the amount and substantiality of what was taken, the court concluded that Koons “copied the essence of Rogers’ photograph in total.” He took the composition, the poses, the expressions, the arrangement of the puppies. There was nothing minor or peripheral about the borrowing.3Justia. Art Rogers v. Jeff Koons, 960 F.2d 301
On effect on the potential market, the court presumed harm because the use was commercial. Even though a $367,000 sculpture and a greeting-card photograph reach different buyers, the court reasoned that an unauthorized derivative could undercut Rogers’ ability to license his own image for other adaptations.4U.S. Copyright Office. Rogers v. Koons – Fair Use Index Summary
Parody Versus Satire: The Doctrinal Heart of the Ruling
The distinction that sank Koons’ defense is one that still catches artists off guard. A parody targets the original work, using pieces of it to comment on or mock that specific creation. A satire uses humor or irony to criticize something broader in the world. The legal consequence is significant: a parodist genuinely needs to borrow from the original because the joke depends on recognizing it, while a satirist can make the same social point without copying any protected expression.
The Second Circuit put it directly: “the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.”3Justia. Art Rogers v. Jeff Koons, 960 F.2d 301 Koons never argued he was commenting on Rogers’ photograph. He argued he was commenting on the culture the photograph came from. The court saw no reason he needed this particular image to make that point. If the target was mass-produced sentimentality, Koons could have staged his own sentimental image or used something in the public domain.
The court also warned that Koons’ logic would gut copyright entirely. If any copying could be defended by claiming a higher artistic purpose, “there would be no practicable boundary to the fair use defense.”3Justia. Art Rogers v. Jeff Koons, 960 F.2d 301
What Rogers Won
The district court granted summary judgment to Rogers in 1991, and the Second Circuit affirmed the following year. The court ordered Koons and the Sonnabend Gallery to turn over all infringing works to Rogers and issued a permanent injunction barring them from making, selling, lending, or displaying any further copies of works based on “Puppies.” Federal law gives courts wide authority to order the seizure and disposition of infringing copies.5U.S. Copyright Office. Copyright Law of the United States: Chapter 5 – Copyright Infringement and Remedies The parties eventually reached a confidential monetary settlement.
How Later Cases Have Refined the Rule
Rogers v. Koons did not settle the law of appropriation art. Three later decisions have moved the boundary in different directions.
Campbell v. Acuff-Rose Music (1994)
Two years after Rogers, the Supreme Court considered 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman.” The Court held that parody can qualify as fair use and rejected any automatic presumption against commercial uses. It stressed that a parody must comment on the original it borrows from, tracking the Second Circuit’s reasoning in Rogers. Campbell also introduced the idea of “transformative” use: works that add new expression with a different purpose or character get more room under the first factor.6Legal Information Institute. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
Blanch v. Koons (2006)
Koons himself later benefited from the transformative-use framework. In Blanch v. Koons, the Second Circuit found fair use when Koons incorporated a fragment of a fashion photograph into a large-scale painting called “Niagara.” He took only a portion, radically altered its context by combining it with other imagery, and articulated a specific artistic purpose that differed from the photographer’s. The photograph highlighted erotic appeal; the painting invited viewers to reconsider their relationship with media imagery. The court treated the borrowing as genuinely transformative.
Andy Warhol Foundation v. Goldsmith (2023)
The Supreme Court narrowed the doctrine again in 2023, in a case involving Warhol’s silkscreen portraits of Prince based on a Lynn Goldsmith photograph. The Court held that adding “new expression, meaning, or message” is not by itself enough to make a use transformative. Because both the photograph and the Warhol portrait were used for the same commercial purpose, illustrating magazine stories about Prince, the Court found no meaningful difference in purpose or character.7Justia. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 598 U.S. (2023) A broad reading of “transformative,” the Court warned, would “swallow the copyright owner’s exclusive right to prepare derivative works.” That reasoning tracks what the Second Circuit said about Koons three decades earlier.
What Artists Should Take From the Case
Rogers v. Koons still offers the clearest picture of where appropriation art crosses into infringement. The practical points are straightforward. Copying an entire work and changing its medium is not transformative. A social-commentary defense requires that the commentary actually target the borrowed work, not just use it as a convenient stand-in. Removing a copyright notice signals bad faith and will damage a fair use argument. Commercial profit amplifies every other factor working against the copier.
The law has grown more nuanced since 1992, but the core rule has held. If you need someone else’s specific creative expression to make your point, you need their permission. If your point can be made without that expression, the law expects you to make it that way.