Think twice before you recreate that pose from your favorite celebrity and repost it. Realistically, will Kim Kardashian sue you for copying one of her poses? Probably Not. But, will a professional photographer go after you? Yep.
There’s a famous Supreme Court case, Rogers v. Koons (960 F.2d 301), which focused on the copyright infringement of a black and white photograph used in greeting cards and other types of merchandise. The decision was important because it focused on parody as a means of fair use. The United States Court of Appeals for the Second Circuit found that copying a photograph without any “clear need” to imitate the photograph can hold the infringer liable for copyright infringement. The court decided that the photo itself was not the specific target of the parody because it was created as a 3D sculpture of the photograph.
Art Rogers, a professional photographer, took a black and white photograph of a man and a woman with puppies in their arms to be used in greeting cards and other various types of merchandise. The photograph was entitled “Puppies.” When Jeff Koons, a famous artist, saw the photograph, he created a sculpture based on the photograph for an art show.
Koons asked his team of sculpture artists to copy as much detail as possible from the photographs. The resulting statutes eventually sold for $367,000.
The Court didn’t buy Koons argument that his sculptures were a parody of Rogers’ photographs. They ruled for Rogers, noting the similarities between both works to be recognizable to the average eye, concluding that the work was a copy of Rogers’ photograph. The court rejected Koons’ claim of parody because it did not believe that Koons’ was commenting on the photograph specifically and used the reproduction in another general art form.
Copyrights are valuable.
Ahaji Amos is an attorney at Ahaji Amos, PLLC; a firm focused on bridging the gap between intellectual property and healthcare for early-stage and small healthcare companies. Ahaji Amos’ practice focuses on healthcare-related intellectual property, as well as healthcare regulatory compliance, mergers, and acquisitions.