New infringement claim against appropriation artist Jeff Koons

Appropriation artist Jeff Koons is back in court, this time for a 1986 painting from his “Luxury and Degradation” show for his work, entitled “I could go for something Gordon’s.” The work is a re-painting and reconfiguration of a Gordon’s Gin advertisement from that same year. Koons’ show, and the work in particular, is not about selling gin, but about how advertising seduces the consumer and presents false promises of the fulfillment of desire. The work is on display on the Whitney Museum website, with commentary on the work and Koons’ series in general.
luxury_and_degradation_e.2013.0050_i_could_go_for_something_gordon_s_792On December 14, 2015, photographer Mitchel Gray filed suit in the U.S. District Court, Southern District of New York, against Koons and auction house Phillips Auctioneers, LLC, for copyright infringement related to the creation, display and sale of the work and Artist Proof which sold “approximately $2.1 million” in 2008. According to Gray, he only discovered the infringement in July 2015.

The Copyright Act has a statutory limit on damage claims accruing more than three (3) years prior to the filing of the lawsuit. What that means is that in order to recover against Koons and Phillips, not only must Gray prove that Koons’ work is not “transformative,” but also Gray must show that he was not on “constructive notice” of Koons’ appropriation. Constructive notice means he should have known of the appropriation. Koons’ attorneys will undoubtedly argue that the appropriation was open, public and notorious, and that Gray should have known of it prior to December 2012.

For an explanation of what is “transformative,” see our posts here (on a Second Circuit’s ruling about “transformative” art; and here (on the Second Circuit’s ruling that the Google book-scanning project was non-infringing.)

See also, Psihoyos v. John Wiley & Sons, Inc., 748 F. 3d 120 (2nd Cir. 2014) for a discussion of the three year limitations on damages being based on discovery of the infringement..

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