THE UNIVERSITY OF NEW MEXICO SCHOOL OF LAW

PHOTOGRAPHS AND COPYRIGHT LAW: THE MODERN-DIGITAL

DILEMMA

Tyson Kyle Gobble

Professor Sherri Burr
Table of Contents

I. INTRODUCTION..................................................................................................3

II. COPYRIGHTS IN THE ARTS IN GENERAL...................................................5

A. HISTORY..........................................................................................................5

B. MODERN COPYRIGHT STATUTES.............................................................6

III. PHOTOGRAPHS AND COPYRIGHT LAW: THE MODERN DIGITAL

DILEMMA..............................................................................................................10

A. THE DOUBLE-EDGED SWORD..................................................................11

B. DUAL-USE TECHNOLOGIES......................................................................11

C. LENIENT LEGAL STANDARDS.................................................................21

IV. CONCLUSIONS...............................................................................................26

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 I. INTRODUCTION

Photographs are rapidly playing a larger role in everyday life in communities

around the globe. Photographs are now taken and disseminated with relative ease

by millions of people around the world through the use of modern technology. The

modern-digital age has driven photographs to an unimaginable audience and to an

unseen popularity. Photographs also serve many functions in society. Because of

the wide implications photographs have on the modern global society, photographs

should be considered and protected as a vital asset to the whole global community.

The continued copyright protection in the future for photographs is both vital

and problematic. The increasing rise in sophistication of modern technology –

more specifically dual-use technology– and the relatively lenient legal standards

create a delicate and unpredictable future. The rise of the global economy and

global community allow more people than ever to create and share art through

photography. Yet, this very same technology has made copyright infringement

easier than ever. The courts and legislature need to move swiftly to identify the

proper path for the future of copyright protection for photographs.

Overtime technology has advanced beyond a point that could have been

imaginable by the framers of the United States Constitution. However, one

constant has remained steadfast over time: innovation in the arts and sciences

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should be encouraged – only through this growth can we continue to expand our

minds to creativity in thought, production, and expression. Photographs will

continue to provide an accessible platform for both technological innovation and

creative expression.

The rise of new and innovative technology has led to many new-age

techniques and has created entirely new genres of art. The emergence of the

appropriation art movement in the modern-digital age presents a very large risk to

copyrighted works of art. This paper will use two modern-American artists as a

case study to illustrate the presence of illegal copyright infringement in the

modern-art community. Appropriation artists, like Jeff Koons and Shepard Fairey,

rely on and borrow copyrighted aspects of other’s works of art in attempting to

transform these objects into a new and original work of art. Although legally

sound in theory, these appropriation artists continue to exploit copyrighted

material. The appropriation movement serves as a great example of the interplay

between dual-use technology and the lenient legal standards in the area of

copyright law today.

This paper will first look to the history of copyright protection and the

modern statutory protection granted to photographs within the United States.

Second, the paper will look at the interplay between the emergence of dual-use

technology and copyright infringement. Next, the paper will determine whether

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the lenient legal standards protecting photograph owners actually serve as an

incentive to prospective copyright infringers. Finally, the possible solutions, that

can be applied to protect photographs in the modern-digital age, will be identified

and assessed.

II. COPYRIGHTS IN THE ARTS IN GENERAL

A. HISTORY

The protections granted to authors of original works can be traced back to

the European influences on the United States. There has long been an established

history of granting creators protection over their thoughts and innovations. More

advanced societies have recognized some kind of copyrights for centuries.

In the United States, the rights and protections granted to the owner or

author of a copyrightable work originate from the Constitution of the United States

of America. The text can be found amongst the enumerated powers of Congress.1

The framers and founders of the Constitution found this protection to be so

important that the Copyright Clause received unanimous approval when submitted

to the constituents at the Constitutional Convention. Even more telling is the fact

that very few items received such widespread approval at the convention.2
1
Article I Section 8 of the Constitution of the United States of America specifically grants Congress the
power “[t]o promote the progress of science and the useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and discoveries.”
2
See Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include it With
Unanimous Approval? 36 Am. J. of Legal Hist. 361, 361 (1992).
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 Historically, photographs have not always been recognized as a

copyrightable work of art. Because of the mechanical processes that are involved

and the perceived lack of expression by the creator, photographs were not

originally granted copyright protection. However due to the flexible and ever

changing global community, photographs were first recognized as a copyrightable

work in Burrow-Giles Lithographic Co. v. Sarony.3 While the court in Burrow-

Giles did recognize photographs as a work of art, the court specifically tailored the

copyright protections granted to photographs only to those elements in which an

artist attempts to use his or her creative expression.4

B. MODERN COPYRIGHT STATUTES

Modern copyright legislation can be seen in the Copyright Act, the Visual

Artists Rights Act (VARA), and the Digital Millennium Copyright Act (DMCA).

These federal statutes govern all copyright and copyright infringement claims

involving photographs in the United States. These federal statutes also preempt

any laws established by the states that may encroach upon the area of copyright

protection.

3
See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
4
See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)(holding that the artist used his own
creative expression in posing Wilde, the selection and arrangement of the costumes, draperies, and other
various accessories, posing of the subject, and arranging the light and shade of the photograph); Mannion
v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005)(the court in Mannion expressed that the
angle of the camera, exposure, timing, and the creation of the subject and scene).
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 The Copyright Act broadly grants copyright protection to various artistic and

creative expressions through many different types of media. Copyright protection

is granted only to those works that are “original works of authorship fixed in any

tangible medium of expression. . . .”5 Although copyright law has been dynamic in

nature over time, the Copyright Act specifically states: “In no case does copyright

protection for an original work of authorship extend to any idea . . . .”6 The

statutory language present in the Copyright Act clearly indicates that ideas alone

are not copyrightable material; thus to be copyrightable a work of art, a photograph

must possess the requisite level of artistic expression and creativity as statutorily

mandated.

The Copyright Act, more specifically 17 U.S.C. § 106, dictates that the

creator of a copyrightable work has to the exclusive power to enforce the following

rights: reproduction, adaption, publication, public performance, and public

display.7 At the heart of these rights is the basic concern for the economic and

ownership rights of the creator. Although these rights at times often overlap, a

violation of each individual right is considered an independent violation and claim.

These six enumerated rights are considered the exclusive rights of the owner and

the owner can then sell or assign these rights at anytime and to anyone.8

5
See17 U.S.C. § 102(a).
6
See 18 U.S.C. § 102(b).
7
For a more in-depth look at the statutory language see 17 U.S.C. § 106(1-6).
8
See statutory notes 17 U.S.C. § 106 .
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 The specific works that have been afforded copyright protection have

gradually expanded over time – with the rise of different techniques and

technology. As stated earlier, photographs themselves have not always been

afforded copyright protection in the United States. The current statutory protection

granted to photographs, as original and copyrightable works of art, can be seen

within the Copyright Act. First, 17 U.S.C. § 102(a) specifically enumerates the

types of artistic works – including “pictorial, graphic, and sculptural works.”9

Second, 17 U.S.C. § 101 specifically defines a pictorial, graphic, and sculptural

work as including a photograph as a pictorial or graphic image.10 Although

photographs are specifically recognized by statute in the modern-digital age,

history has shown us that this list is not static. As technology develops and artists

create innovative techniques, the need to protect other original works will arise.

The dynamic nature of the modern copyright statutes properly allows for the

flexible nature of copyright law envisioned by the framers of the Constitution.

9
For a complete list of copyrightable works see 17 U.S.C. § 102(a).
10
17 U.S.C. §101 defines a pictorial, graphic, and sculptural work as: “two-dimensional
and three-dimensional works of fine, graphic, and applied art, photographs, prints and
art reproductions, maps, globes, charts, diagrams, models, and technical drawings,
including architectural plans. Such works shall include works of artistic craftsmanship
insofar as their form but not their mechanical or utilitarian aspects are concerned; the
design of a useful article, as defined in this section, shall be considered a pictorial,
graphic, or sculptural work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified separately from, and are
capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. §
101.

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 The Visual Artists Right Act, commonly referred to as VARA, also provides

a limited number of photographs even greater protection. These protections apply

to a very narrow subset of American photographs. “VARA amends the Copyright

Revision act by providing to ‘authors’ of certain types of singular or limited edition

artwork the rights of attribution and integrity.”11 The rights of attribution and

integrity are considered the artist’s moral rights, which are different from certain

economic rights that are addressed by copyright protection. However, these moral

rights can play a large role in protecting an artist’s unique expression through a

photograph.

Under VARA, a photographer can only gain the rights of attribution and

integrity in limited circumstances. Section 101 of the Copyright Act defines a

work of visual art for photography purposes as:

“a still photographic image produced for exhibition purposes

only, existing in a single copy that is signed by the author, or in
a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author.” 12

For purposes of VARA and the implication of moral rights to a photograph, the

photograph must fit into the above definition of a work of visual art. Only then can

a creator enjoy both the economic rights – provided by the Copyright Act – and the

moral rights – provided through VARA.

11
Leonard D. DuBoff, Sherri Burr, & Michael D. Murray, ART LAW Cases and Materials, 206 (rev. ed.,
Aspen 2010).
12
See 17 U.S.C. § 101 Works of Visual Art (2).
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 The Digital Millennium Copyright Act also plays a large role in the modern-

digital age. The DMCA applies to the areas of copyrights and photographs that are

protected by electronic measures.13 The DMCA makes it illegal to distribute

devices that could circumvent the electronic protection and disseminate infringing

work through electronic means.14 Although the DMCA imposes severe

punishments meant to deter the exploitation of copyrightable material through

electronic means, these deterring effects are doing little to many modern-day

infringers, like Koons and Fairey.

In sum these modern statutes do provide the artist many different avenues of

protection. These statutes do not provide absolute protection however. The

modern-digital era presents unprecedented problems for copyright owners. Even

when copyright owners take the necessary measures to protect their photographs,

these protections, deterrence measures, and penalties mean little to a potential

infringer. Only when the courts and federal prosecutors begin to enforce the

modern-day copyright statutes vigorously will the infringers begin to think twice

before exploiting a photograph through electronic measures.

III. PHOTOGRAPHS AND COPYRIGHT LAW: THE MODERN

DIGITAL DILEMMA

See 17 U.S.C. § 1201.

13

Leonard D. DuBoff, Sherri Burr, & Michael D. Murray, ART LAW Cases and Materials, 216 (rev. ed.,
14

Aspen 2010).
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 A. THE DOUBLE-EDGED SWORD

As we have seen, photographs have not always been afforded copyright

protection. As technology and creativity develops, the dynamic nature of

copyright law allows for the flexibility and adaptability that is needed to encourage

the creative process. However, this very same technology and creativity can work

to the detriment of the creator of a copyrightable photograph. The modern-digital

age has created a two-fold dilemma. The ease and accessibility to photography has

never been greater, but the ease and accessibility to technology to pirate and alter

copyrightable photographs has also never been greater.

B. DUAL-USE TECHNOLOGIES

The concept of dual-use technology adds to the problematic interplay

between copyright law and technology in the digital age. In the context of

photographs and copyrights, dual-use technology can be described as technology

that is capable of being used in both infringing and non-infringing methods.15

Modern examples of dual-use technologies that relate to the exploitation of

photographs are littered throughout society: modern-cell phones with digital

cameras and Internet capabilities, image-enhancement software, peer-to-peer file-

15
See Brett M. Frischman, Review of the Innovation for the 21st Century: Harnessing the Power of
Intellectual Property and Antitrust Law, 61 Ala. L. Rev. 579, 580 (2010). The article also expresses an
argument for the desirability of maintaining the Sony shield against secondary liability to creators of dual-
use technology.
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sharing software, social networks, and even the Internet.16 Even though these

innovative technologies are creative, identify new markets, and create new

opportunities, these dual-use technologies pose what some have dubbed the

“digital dilemma”.17

The dual-use technologies present into today’s society create an unlimited

array of possible opportunities for infringement upon copyright protection in

America. Artists like Koons and Fairey have capitalized on such technology in an

attempt to circumvent modern copyright law. However, these very same

technologies can be used in ways that protect the copyrightable material found in

digital media today.18 The advent of the computer, Internet, digital photograph,

and photograph manipulation software has changed the methods in which a

photograph can be exploited. The methods and technology that are currently

available have made illegal exploitation of photographs much more prevalent,

sophisticated, and efficient.

As previously noted, copyright law is dynamic and capable of changing with

technological innovation, but historically copyright law has been slow to react to

dual-use technologies.19 The ability of a potential infringer to use the technology

to make perfect copies and disseminate them over the Internet is now a very

16
Frischman, 61 Ala. L. Rev. at 580.
17
See Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics
of Digital Technology, 69 U. Chi. L. Rev. 263, 263 (2002).
18
Shih Ray Ku, 69 U. Chi. L. Rev. at 264.
19
Frischman, 61 Ala. L. Rev. at 580.
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realistic and actual consequence of the modern digital age. This dilemma poses

serious risks to the protections that authors of original photographs have

historically enjoyed. Although there has been some discussion of possible

solutions to these problems, there has been little to no recent reaction by the policy

makers to ensure copyright protection to photographs in the future.

There are many modern examples of copyright exploitation through the

implementation of dual-use technology. One of the most recent and prominent

examples can be seen in Fairey v. The Associated Press.20 Fairey involves a

copyright infringement claim brought by the Associated Press (AP) involving a

2006 photograph of now President Barrack Obama, which the AP claims was

illegally used and obtained by Shepard Fairey in creating posters and stickers

during the 2008 Presidential Election. The “Hope” posters and stickers began to

be distributed on a grass-roots level, but eventually became an iconic,

recognizable, and national symbol of the election. Although the court has not

come to a final decision in the case, this case in particular is demonstrative of the

problems occurring in the digital age.

Fairey is an American new-age artist, who is primarily known for his

guerilla-art style and techniques of illegally placing propaganda-like-poster art and

20
For a look at the preliminary issues presented to the Court see Fairey v. The Associated Press, 09-CV-
01123 (S.D.N.Y. 2010).
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stickers throughout American urban areas.21 Fairey’s most prominent and most

publicized piece of so-called art is by far the Obama “Hope” poster. Because the

poster and stickers received such widespread recognition during the 2008 election,

Fairey began selling the “Hope” poster commercially on his own official website

to fund the ever developing national project.22

The AP claims that Fairey illegally relied upon a copyrighted photograph of

Obama taken by Mannie Garcia, while on assignment for the AP in 2006. The AP

also maintains that the “Hope” poster contains copyrightable elements present in

Garcia’s photograph and owned by the AP. Fairey originally claimed that he did

not rely on the photograph, the poster was his original expression of creativity, and

raised the affirmative defense of the fair-use doctrine. Fairey’s legal position

became even more troublesome when he later admitted that he had illegally copied

the photograph from the internet and eventually his legal team distance themselves

from him.23 24 The final twist in the story came when Mr. Garcia, the photographer,

came forward and stated that he believed that he was the owner of the original

photographer because of his contractual arrangement with the AP at the time the

photograph was taken.

21
Randy Kennedy, Artist Sues The A.P. Over Obama Image, The New York Times (February 10, 2009).
22
For a look at the website used to sell the “Hope” posters and other 2008 election memorabilia see the
website address: http://obeygiant.com/headlines/obama.
23
Leonard D. DuBoff, Sherri Burr, & Michael D. Murray, ART LAW Cases and Materials, 124 (rev. ed.,
Aspen 2010).
24
For a look at what Fairey’s team of lawyers said when withdrawing from Fairey’s representation see the
webpage: http://cyberlaw.stanford.edu/case/fairey-v-associated-press.
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 The situation of Shepard Fairey is a very clear example of how dual-use

technology can pose a serious risk to the traditional copyright protections. The AP

used the Internet as a forum to sell their copyrighted photograph, which is a non-

infringing use. Fairey used the very same technology, the Internet, to illegally

obtain the copyrighted photograph and ultimately disseminate his final product

globally through his own official website for a profit. Although there are

restrictions against the illegal dissemination and copying of copyrighted material

through the Internet, the enforcement and potential penalties did little to deter

Fairey in this situation.

The modern-digital dilemma is full of other examples of how dual-use

technology is being used to infringe upon the protections of copyright law. There

have been many cases were copyrighted photographs have been displayed, sold,

and copied on other websites.25 The sheer number of Internet websites and Internet

users has changed the photograph and copyright landscape throughout the world.

In the modern-digital age, photographs are like trading cards. People can easily

post, view, and exchange photographs with people all over the globe through the

Internet, specialized photograph websites, and social networks. Koons and Fairey

25
See ALS Scan Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002). Although decided
on jurisdictional issues, the case presents an example of dual-use technology being used to exploit
copyrighted photographs.
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are just a couple examples of modern-day-digital pirates using this dual-use

technology to capture and alter copyrighted images.26

The rise of photo-enhancement software also poses one of the largest threats

to copyrighted photographs in the digital age. Infringers can easily find a picture

on the Internet that is copyrighted and use this technology to isolate and alter the

image. Koons is well known for using such tactics. The infringer is also able to

create an unlimited amount of perfect copies of the photograph during this process

as well. During the enhancement process the infringer can isolate and change any

of the copyrighted and/or copyrightable portions of the photograph. Even though

changing or altering the photograph is a direct violation of the artist’s moral right

of integrity, many photographs and artists do not have this right because of the

limited and narrow subset of photographs that VARA protects.

Photo-enhancement software also has many legitimate uses, a prominent

example of dual-use technology at work. The creator or author of the photographs

can use this very same software to touch up and/or add even more artistic

expression to the photograph itself. The process of using this dual-use technology

– photo-enhancement software – to add the artist’s own expression and creative

process can be seen throughout the digital era. Koons, Fairey, and photographers
26
For other examples of dual-use technology being used to infringe upon photographs see
FragranceNet.com, Inc. v. FragranceX.com, Inc., 679 F.Supp.2d 312 (denying defendant’s motion to
dismiss that the plaintiff’s images on company’s website were not entitled to copyright protection);
Oriental Art Printing, Inc. v. Goldstar Printing Corp., 175 F.Supp.2d 542 (holding that the plaintiff’s
menu containing generic photographs was not able to garner copyright protection, but also hinting that
maybe the individual photographs might be copyrightable).
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everywhere are using computer software to change the original expression of the

artist to express a new and arguably even more artistic image.27

Two very legitimate and worthwhile solutions are possible in today’s

modern age, these examples are: (1) expand VARA protection to a larger subset of

modern photographs and (2) use the same dual-use technology to apply electronic

and digital protection to copyrighted photos. The expansion of VARA rights to a

larger subset of photographs would effectively enlarge the statutory rights of

authors and owners of original photographs. Although expanding VARA

protection to a larger number of photographs might be seen as controversial,

expanding these protections to all photographs is not necessary. The current

statutory language could be amended by the legislature to include a broader

definition of a protected photograph.

VARA currently only applies to what some might call high-end

photographs. Modern-day experience tells us however, that these are not the only

photographs that need the protections granted through VARA. Modern media

relies heavily upon photographs – whether modern digital media or the more

traditional types of media. Corporations are spending large sums of money on the

creation of photographs. It only then seems logical that artists like Fairey and

Koons should not then be able to commercially exploit this work and other

27
Modern-day wedding photos are a great example of using photo-enhancement software to depict new
and enhanced images.
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commercial photographs. Expanding VARA to also protect photographs that are

essentially commercial in nature would not defeat the traditional purposes of

VARA. An example of this expansion can be seen in the following proposed

statutory language:

“a still photographic image produced for exhibition purposes only, existing

in a single copy that is signed by the author, or in a limited edition of 200
copies or fewer that are signed and consecutively numbered by the author
OR a photographic image that is essentially commercial in nature.”

Although the term “essentially commercial in nature” may seem broad, there

are a number of factors that can be used to help identify whether a photographic

image is commercial in nature. An inquiry into the purpose or motive of the

photograph will help determine if the author’s motive in constructing the

photograph was commercially driven. Looking at the way the photograph was

utilized by the photographer or the owner of the photograph will help identify any

intended and potential commercial uses of the photograph. Examples of

recognized commercial uses are: advertising, marketing, and more traditional uses

of photography in both newspapers and magazines. Another good indicator that

the photograph is essentially commercial in nature would be if the photograph was

ever sold or if the photograph was taken as part of a larger photo shoot with a

commercial purpose. While these may be a good place to start, the actual

determination will ultimately depend on the facts of each case. Thus, it will be

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necessary to access all the facts and circumstances in each individual case before

coming to an ultimate conclusion.

By expanding VARA, the owner’s of photographic copyrights would be able

to acquire the rights of integrity and attribution. These two rights collectively

would effectively counter some of the threats that dual-use technology poses. In

addition to the protections that the DMCA applies to digital photographs, this

legislation would effectively make it illegal to alter and change a copyrighted-

digital photograph. This change would also make it illegal for an infringer to copy

the photograph and then claim it as their own.

Opponents of the expansion of VARA will argue that the statutory granted

protections are not meant to protect the everyday photograph. This point is well

taken. However, the dynamic nature and history of the copyright law clearly

indicates that copyright law is meant to expand overtime as technology advances.

Technology has increased to the point where it is vital that modern photographs be

accompanied by the rights of attribution and integrity. The current digital

environment has made it possible to essentially break down photographs into

individual pieces that can be used in another work of art. The rights of integrity

and attribution would clearly protect photographs from this intrusion. More

importantly it would make it easier for the owner of the copyrighted photograph to

file suit and protect his or her expression.

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 The dual-use technology can also be applied to protect the copyrighted

photographs. In today’s high-tech world there are many forms of digital protection

that could be applied to protect the rights of the owner of a copyrighted

photograph. The most obvious form of digital protection would be encryption.

Encryption could be used simply like a code. This would allow only the author or

owner to gain access to digital photograph.

There are downsides to the encryption argument. First, the photographer or

owner of the photograph would need to have access to the necessary technology to

include encryption within a photograph. The technology necessary to apply

encryption to a photograph would increase the cost of the photographic process.

This type of technology is currently present in computer software and motion

picture DVDs. Although present, these protections are continually circumvented

by the determined. For these reasons, VARA expansion would be preferable.

Although the preceding solutions are very realistic, the legislature would

first have to enact changes to the current statutory scheme. Congress must first act

to expand VARA or to mandate that a digital photograph must be protected by

some form of encryption. The flexibility of the copyright law and the increased

sophistication of technology both allow for these solutions to become reality.

C. LENIENT LEGAL STANDARDS

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 The lenient legal standards that are employed in the adjudication of

copyright cases create little to no deterring effect in today’s modern-digital age.

Artists, like Koons and Fairey, and infringers alike today arguably see these legal

standards as incentives and rely on the modern dual-use technology to exploit an

author’s original and copyrighted work. The standards applied in cases of

acquiring copyright protection and in copyright infringement are easily met in most

cases. Although the primary purpose of traditional copyright law is to encourage

creativity, this arguably encourages illegal creativity in the digital age – furthering

the digital dilemma.

In the case of copyright protection, the author must only prove that the work

is an original work of art that contains the requisite minimal level of the artist’s

own creativity or expression. As one can imagine, a photograph arguably always

contains some unique and creative expression. Thus, arguably a photograph will

always contain some original copyrightable element – as statutorily required by the

Copyright Act. The courts have continually reiterated:

“To be sure, the requisite level of creativity is extremely low;

even a slight amount will suffice. The vast majority of works
make the grade quite easily, as they possess some creative
spark, ‘no matter how crude, humble or obvious’ it might be.”28

28
See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345,
111 S.Ct. 1282, 1287 (1991).
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Although Feist was not a photography case per se, the same copyright principles

can be seen throughout all of the different classes of copyrightable material. This

standard is too lenient and creates an atmosphere that fosters the exploitation of

copyrighted material. Thus, under the traditional law, a potential infringer need

only add a touch of their creative spark to someone’s copyrighted photograph to

make it theirs.

As we have seen, the majority of protection granted to the authors and

creators of photographs are established through federal statutory schemes. Modern

case law, however, dictates the analysis to determine whether or not an author’s or

owner’s rights have been infringed upon. Under a copyright infringement analysis,

the proper determination is whether or not the two photographs are substantially

similar.29 To prove an infringement of an author’s right there are two elements that

must be met: “(1) the defendant has actually copied the plaintiff's work; and (2) the

copying is illegal because a substantial similarity exists between the defendant's

work and the plaintiff's protectable elements.”30

Like the easily met test witnessed with a creator’s use of unique expression

in the photograph, the substantially similar test too is a pretty lax standard.

Basically, a photograph is substantially similar when the protected elements are

essentially copied. This holds true to the purpose of copyright legislation – the
29
See Frye v. YMCA Camp Kitaki, 617 F. 3d. 1005 (8th Cir. 2010).
30
See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 449 (2005).
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encouragement of artistic creativity and expression. This arguably encourages the

wrong kind of creativity.

Modern artistic techniques and modern technology have created a very

difficult dilemma within the art world. New-age artists are becoming more and

more dependent on material that they copy from the Internet or other places –

consisting of intentional copyright exploitation. For example, artists like Shepard

Fairey and Jeff Koons have continually relied upon other’s work in creating their

own. These so-called appropriation artists continue to test the outer boundaries of

the law, while only gaining in notoriety through the process.

Jeff Koons is a new-age American artist. His work has been displayed in

many galleries across the world, has been sold for extravagant sums of money, and

has gathered much criticism over time. Koons is well known for incorporating

modern media and advertising – gathered and taken from others – into his own

work.31 Koons often relies on isolating individual aspects of copyrighted work,

through photo-enhancement software, in arranging his images in a provocative

manner. Koons and other appropriation artists often rely on the affirmative

defense of the fair-use doctrine to overcome claims of copyright infringement.

More specifically, opponents of Koons might charge him with fabricating

arguments to indicate that the work of art was created as a parody or satire of the

original image.
31
See Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006)
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 The very fact that Koons has had several copyright infringement cases in

recent times only serves as a buttress to the argument that the present legal

standards and punishment do little to deter the determined.32 Koons, Fairey, and

other neo-pop artists are incorporating copyrighted material in their work because

of the ease of accessibility. In the unlikely event that they do get caught these

artists find a law suit to be very cheap publicity and press. In a recent discussion

with a former Koons’ employee, it seems that Koons finds that a law suit or any

other negative publicity adds value and curiosity to his pieces. Artist’s who break

the law should not be able to gain from their illegal exploitations of someone else’s

art work.

Modern artists like Koons and Fairey are arguably relying on their own

creativity to compose a work of art. However, the type of creativity that they are

expressing is illegal. These artists are relying on the ineffectiveness of the modern

copyright law and the failure of federal prosecutors to prosecute cyber criminals to

essentially get away with theft. The copyright laws and penalties that are in place

32
See Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992)(upholding a copyright infringement claim against
Koons and finding that Koons’ “String of Puppies” was not entitled to protection under the fair-use
doctrine); Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006)(denying an infringement claim and holding that
Koons appropriation and use of Plaintiff’s photograph in Koons’ work “Niagra” was entitled to protection
under the fair-use doctrine as a satire); Campbell v. Koons, No. 91 Civ. 6055, 1993 WL 97381, 1993 U.S.
Dist. LEXIS 3957 (S.D.N.Y. Apr. 1, 1993)(holding that Koons illegally copied protected images and
denying use of fair-use doctrine); United Feature Syndicate v. Koons, 817 F. Supp. 370 (S.D.N.Y. 1993)
(also holding that Koons illegally relied on copyrighted images and denying Koons the affirmative
defense of the fair-use doctrine).
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today are obviously not deterring modern artists against the infringement of

copyrights.

To properly deter these individuals the courts and prosecutors need to take a

firm and proactive stance against modern-day pirates. While the DMCA does offer

severe sanctions, the DMCA is not deterring Koons, Fairey, or other artists from

copying other’s works of art. The prosecutors on the federal level need to attack

such artists and bring cases against these individuals to make the DMCA’s severe

sanctions possible. In addition to the DMCA sanctions, the courts could mandate a

bad faith inquiry into the copyright analysis.

An inquisition into the bad faith of a potential infringer could serve two

purposes. First, the inquiry will be able to isolate the motive for the infringement

by the artist. Second, it can be used to help attack the affirmative defense of the

fair-use doctrine. Essentially if the bad faith intent to copy the work for illegal

purposes and commercial gain is present then the artist would have no claim of fair

use of the image. If the element of bad faith is present then the infringer will not

be allowed to use the copyrighted elements of a photograph in any way. This also

holds true to the traditional notion that not all elements of a photograph are

copyrightable. Thus, the artist would still be free to employ any of the unprotected

elements.

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 Applying the bad faith element to either artist that has been studied in this

paper would indicate the obvious. Both artists sought to capitalize commercially

on the copyrighted work. Koons is well known for intentionally taking and using

copyrighted images in his own work. Fairey on the other hand possessed the

necessary bad-faith element, but is not as well known for using other’s work.

Under a bad-faith analysis, neither artist would be able to commercially gain from

exploiting another’s copyrighted work.

The imposition of harsher penalties to artists who chose to use copyrighted

work would effectively terminate any likelihood that infringers would continue to

rely on another’s copyrighted portions in their own work. The DMCA does

specifically mandate strict and severe punishments. The DMCA also makes it

illegal to distribute a product that circumvents any digital protections added to the

photograph. This two-pronged attack on copyright infringement has worked in

some ways. However, the DMCA has also added to the underground network of

infringers. Federal prosecutors need to apply the DMCA wherever possible to

send a strong message to the infringers that this type of behavior will not be

tolerated in the digital era.

IV. CONCLUSIONS

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 The continued copyright protection of photographs in the modern-digital age

is vital. Although technological innovation will create both opportunity and threats

to owner’s of copyrighted photographs, this is no reason for the protection to be

totally abandoned. The dual-use technology that is employed throughout the world

can serve as both a sword and a shield. For the future protection of copyrighted

photographs to be a viable avenue for artists the proper protections need to be

implemented now.

Although the purpose of copyright law is to promote creativity, the modern

statutory scheme is promoting the wrong type of creativity. Koons, Fairey, and

other modern artists are relying on copyrighted work and circumventing the

copyright law to the detriment of the true owner. Actively pursuing change in the

current copyright framework is the only way to help solve the problem and educate

society as to the necessity of upholding traditional purpose of copyright law.

Broadening the protection granted to photographs under VARA would serve

to better protect authors of original photographs from the threats of the digital era.

Granting the rights of attribution and integrity to a larger subset of photographs,

including those essentially commercial in nature, would help meet the ever

increasing need to protect photographs from illegal exploitation by artists like

Koons and Fairey. In addition, this change will leave the author or owner of a

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copyrightable photograph with the necessary and proper recourse to combat the

problems that accompany the digital dilemma.

Mandating a bad-faith inquiry into the copyright infringement analysis will

help to isolate the motive or desire of a potential infringer. This inquiry will also

help to lessen the effective of a post hoc parody or satire justification. Effectively

applying the DMCA to copyright infringers will lead to less infringement over the

Internet. Although federal prosecutors might not find this issue as pressing and

imminent as others, it is necessary that they start implementing the strict and

severe penalties included in the DMCA whenever and wherever possible.

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