Intellectual Property: Fair Use

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Why did the courts come to two different conclusions in the two Jeff Koons cases? Does it make sense to you?

Despite the seeming similarity between the two cases, each of them considers a different issue regarding the use of the intellectual property. It is important to realize that, owing to the doctrine of Fair Use, people are allowed to make use of a certain piece of the intellectual property provided by the beholder of the rights for the property in question, for such purposes as defense or parody. While one of the cases is the clear-cut example of using a work of art for parody, the second case looks considerably less innocent.

To be more exact, in the case of Rogers vs. Koons, it was obvious that Koons used the postcard as the means to satirize the culture of the era, and the postcard was only an example to drive inspiration from. Since the proportions of the original picture were deformed, the colors are chosen intentionally wrong, and the entire picture blown to epic proportions, it was clear that the object in question was parodied.

In the case of Blanch vs. Koons, however, the issue was quite different. In the given case, Koons used the photography, which Blanche had taken previously, in one of his paintings to capture the specifics of the epoch. It is worth stressing that, in contrast to the other case, in the given one, Koons did not exaggerate the elements that he “borrowed” from Blanche’s photograph, therefore, making it obvious that his painting was not a work of satire or parody, but merely an act of copying the artwork created by another person. Therefore, while the first case can be regarded as a parody and be dismissed, the second one is a graphic example of plagiarism and the breach of the Free Use law.

Fair Use is a bit complicated, so I would like you to explain in your own words what Fair Use is and how it works and/or ask any questions that confuse you?

Fair Use should be an affirmative right, not an affirmative defense. The significance of this legally is that when something is an affirmative defense, the burden is on the defendant to prove that his use was a Fair Use. If it were an affirmative right, the burden of proof would shift to the plaintiff to prove that the use was not Fair Use.

Traditionally defined as a set of regulations that are aimed at protecting the rights of the media owner, at the same time allowing for limited use of the given media, Fair Use restricts the unwarranted usage of media, which goes beyond the allowed limits. To be more exact, Fair Use permits the use of a specific piece of media, which has been provided by the owner of the copyrighted material, for parody or defense; the use, however, must not go beyond the materials provided unless specific permission has been granted by the owners of the corresponding material.

Copyright law is by far one of the trickiest and the most complicated regulations; involving several exceptions and amendments, as well as incorporating numerous concepts, which, quite honestly, are rather obscure, the given sphere of legislation has clearly et not been defined completely and will suffer further changes in future. One such element, Fair Use is quite controversial, seeing how it is posed as an affirmative right, whether it should be as an affirmative defense.

Indeed, when considering the cases of copyright infringement, it is traditionally assumed that the use was fir, whereas, based on the principle of the benefit of the doubt, the unfairness of use should be proven.

The given idea, though seemingly being aligned with the basic principles of human rights, seems, however, inapplicable to the existing legislation – at least, for the time being. Since the concept opposite to the Fair Use presupposes gathering the evidence concerning the unfairness of the use of a certain media, it can be assumed that every lawsuit is going to be considered on a case-by-case basis, which will make the process unnecessarily complicated.

Readings

Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright Law(University of Chicago Press 2011).
Two Jeff Koons cases attached.

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Intellectual Property: Fair Use

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