A cropped, inverted photograph fragment survived a fair-use test

The image

The photograph at issue is Andrea Blanch's 'Silk Sandals by Gucci,' published in the August 2000 issue of Allure as part of a six-page feature on metallic cosmetics. It shows a woman's lower legs and feet, glittering with bronze nail polish and Gucci sandals, resting on a man's lap in what appears to be a first-class airplane cabin. Blanch testified she chose the airplane setting and the pose herself, though Allure's creative director suggested the model, shoes, and polish. Jeff Koons, working on a 2000 painting series called 'Easyfun-Ethereal' commissioned by Deutsche Bank, scanned the image and used the legs, without the airplane background or the man's lap, in a painting titled 'Niagara,' as the appellate opinion records.

What the documents show

The opinion states plainly what Koons did to the image: he kept only the legs and feet, discarded the airplane cabin and the man's lap, inverted the legs so they hang downward instead of slanting upward, added a heel to one foot, and altered the coloring. He did not ask Blanch's permission. The court also records the money involved: Deutsche Bank paid Koons two million dollars for the seven 'Easyfun-Ethereal' paintings, of which Koons's net compensation for 'Niagara' specifically was $126,877, and the exhibition at the Deutsche Guggenheim Berlin brought in roughly $100,000 in admissions and merchandise. These are facts the court sets out from the summary-judgment record, not later commentary.

Production context

Editorially, the case records how a commissioned, museum-adjacent project handled a borrowed image: Koons's own affidavit, quoted in the opinion, describes 'Niagara' as commentary on how appetites for food, play, and sex are mediated by advertising images, citing a billboard he saw in Rome as his stated inspiration rather than Blanch's photograph specifically. The court weighed that stated purpose against how much of the original was taken and against Blanch's own account of her creative choices in staging the shot.

Reference versus imitation

The court drew the line by revisiting its own earlier ruling. In Rogers v. Koons, decided in 1992, this same circuit held that a Koons sculpture copying a different photograph was not parody because, as that opinion put it, 'the copied work must be, at least in part, an object of the parody.' Here, the panel found 'Niagara' was not parody or satire of Blanch's specific photograph, but concluded the use was still transformative because it served a different purpose than the original commercial photograph. The distinction is fact-specific: how much of the source is visible, what was changed, and what commentary the secondary work makes, examined image by image rather than by any general rule that borrowing for commentary is automatically fair.

• How much of the original image remains visible and unaltered in the new work?
• What does the artist's own account say the reused image was for?
• Did the copyright holder's original creative choices get named and preserved in the record?

Reference practice can survive a court's scrutiny without an artist's permission, but only when a documented record, not a general claim of commentary, ties the transformation to a real purpose distinct from the original photograph.