Nature of the Case
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Facts
D is a visual artist who is known for incorporating into his artwork objects and images taken from popular media and consumer advertising. This form of art is called 'neo-Pop art.' D's sculptures and paintings often contain such easily recognizable objects as toys, celebrities, and popular cartoon figures. D's latest lawsuit magnet is entitled 'Easyfun-Ethereal.' It was commissioned in 2000 by Deutsche Bank in collaboration with Guggenheim Museum. D culled images from advertisements or his own photographs, scanned them into a computer, and digitally superimposed the scanned images against backgrounds of pastoral landscapes. He printed color images of the resulting collages for his assistants to use as templates for applying paint to billboard-sized, 10' x 14' canvasses. The paintings, seven in all, were exhibited in Berlin from October 2000 to January 2001. One of the paintings, 'Niagara,' consists of fragmentary images collaged against the backdrop of a landscape. It depicts four pairs of women's feet and lower legs dangling prominently over images of confections -- a large chocolate fudge brownie topped with ice cream, a tray of donuts, and a tray of apple-danish pastries -- with a grassy field and Niagara Falls in the background. The images of the legs are placed side by side, each pair pointing vertically downward and extending from the top of the painting approximately two-thirds of the way to the bottom. The four pairs of legs occupy the entire horizontal expanse of the painting. By juxtaposing women's legs against a backdrop of food and landscape, he says, he intended to 'comment on the ways in which some of our most basic appetites -- for food, play, and sex -- are mediated by popular images.' 'Niagara' gets its images from fashion magazines and advertisements. One of the pairs of legs was adapted from a photograph by P, an accomplished professional fashion and portrait photographer. The photograph used by D appeared in the August 2000 issue of Allure magazine. Entitled 'Silk Sandals by Gucci', it depicts a woman's lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man's lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. D saw 'Silk Sandals' in Allure. D scanned the image of 'Silk Sandals' into his computer and incorporated a version of the scanned image into 'Niagara.' He included only the legs and feet from the photograph, discarding the background of the airplane cabin and the man's lap on which the legs rest. D inverted the orientation of the legs so that they dangle vertically downward above the other elements of 'Niagara' rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph's coloring. The legs from 'Silk Sandals' are second from the left among the four pairs of legs that form the focal images of 'Niagara.' D did not seek permission. D was paid $2 million for the seven 'paintings and claims the net compensation attributable to 'Niagara' was $126,877. Deutsche Bank received gross revenues of approximately $ 100,000 from the exhibition of the 'Easyfun-Ethereal' paintings. Guggenheim estimates that it earned a profit of approximately $2,000 from 'Niagara. Sotheby's reportedly appraised 'Niagara' at $1 million. Allure paid P $ 750 for 'Silk Sandals.' P testified that D's use of the photograph did not cause any harm to her career or upset any plans she had for 'Silk Sandals.' P sued Ds. The district court granted summary judgment to D. 'Niagara's' use of the image from 'Silk Sandals' constituted fair use. The court determined that: D's use was 'transformative,' that P's copyrighted work was 'banal rather than creative,' and therefore the nature of the copyrighted work weighed in favor of Ds. The statutory factor concerning 'the amount and substantiality of the portion used in relation to the copyrighted work as a whole,' was neutral between the parties. It held that P's photograph could not have captured the market occupied by 'Niagara,' so that the final factor, the effect of the use upon the potential market for the copyrighted work, favored Ds. P appealed from D’s summary judgment.
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