## Facts

- Andrea Blanch, a professional fashion photographer, created and owned the copyright to a published photograph, *Silk Sandals by Gucci*, showing a close-up of a woman’s lower legs and feet in Gucci sandals in an airplane setting.
- Deutsche Bank and the Solomon R. Guggenheim Foundation commissioned artist Jeff Koons to create works for an exhibition.
- Koons created a painting, *Niagara*, that incorporated a portion of Blanch’s photograph: the legs-and-feet segment.
- Koons digitally altered the copied segment and placed it into a larger collage-like composition with multiple sets of women’s legs and flowing dessert imagery.
- Koons did not copy the entire photograph and omitted elements such as the surrounding airplane cabin context and the male figure referenced in the original scene.
- Blanch sued Koons and the commissioning institutions for copyright infringement in the Southern District of New York.
- The district court granted summary judgment to defendants on the ground that the challenged use was fair use.
- Blanch appealed to the Second Circuit.

## Issues

1. Whether Koons’s incorporation of part of Blanch’s copyrighted photograph into *Niagara* constituted fair use under 17 U.S.C. § 107.
2. How the § 107 factors apply to appropriation art where the secondary work claims a distinct artistic objective.
3. Whether the challenged use caused cognizable harm to any actual or potential market for the photograph or its derivatives.

## Decision

- The Second Circuit affirmed summary judgment for defendants, holding that Koons’s use was fair use.
- On purpose and character, the court found *Niagara* highly transformative: Koons used the image as raw material for a different artistic purpose and meaning than the fashion-advertising aim of the original photograph.
- The court treated the commercial aspect (Koons was paid) as non-dispositive and found the transformative character weighed strongly in favor of fair use; it also discounted the significance of not seeking permission.
- On nature of the copyrighted work, the court recognized the photograph’s creative character but gave this factor limited weight because the secondary use was highly transformative.
- On amount and substantiality, the court held the portion taken (legs and feet) was reasonable in relation to Koons’s purpose, especially given alteration and recontextualization.
- On market effect, the court found no harm to any traditional or likely-to-develop market for Blanch’s photograph, rejecting speculation that copyright protects markets consisting of licensing transformative uses.
- A concurring judge agreed with the result but cautioned against broad doctrinal statements beyond the case’s facts.

## Legal Principles

- Fair use turns on the four statutory factors in 17 U.S.C. § 107, considered together.
- A use is more likely fair when it is transformative—adding new expression, meaning, or message and serving a different purpose from the original.
- Commerciality is relevant under factor one but does not create a presumption against fair use.
- Under factor three, the amount taken is evaluated relative to the copier’s justified purpose, not by absolute quantity alone.
- Under factor four, the cognizable market inquiry focuses on traditional, reasonable, or likely-to-develop markets, and does not protect purely speculative licensing markets for transformative uses.

## Conclusion

The Second Circuit held that Koons’s altered, recontextualized incorporation of part of Blanch’s fashion photograph into *Niagara* was a transformative fair use and therefore not copyright infringement, particularly where the use did not substitute for the original or impair any identifiable market for the photograph.


Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)