ROGERS v. KOONS, 960 F.2d 301 (2nd Cir. 1992)
The key to this copyright infringement suit, brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants’ borrowing of plaintiff’s expression of a typical American scene — a smiling husband and wife holding a litter of charming puppies. The copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism.
BACKGROUND FACTS
A. Rogers
We think it helpful to understanding this appeal to set forth the principals’ professional backgrounds. Plaintiff, Art Rogers, a 43-year-old professional artist-photographer, has a studio and home at Point Reyes, California, where he makes his living by creating, exhibiting, publishing and otherwise making use of his rights in his photographic works.
[…]
In 1980 an acquaintance, Jim Scanlon, commissioned Rogers to photograph his eight new German Shepherd puppies. When Rogers went to his home on September 21, 1980 he decided that taking a picture of the puppies alone would not work successfully, and chose instead to include Scanlon and his wife holding them. Substantial creative effort went into both the composition and production of “Puppies,” a black and white photograph. At the photo session, and later in his lab, Rogers drew on his years of artistic development. He selected the light, the location, the bench on which the Scanlons are seated and the arrangement of the small dogs. He also made creative judgments concerning technical matters with his camera and the use of natural light. He prepared a set of “contact sheets,” containing 50 different images, from which one was selected.
After the Scanlons purchased their prints for $200, “Puppies” became part of Rogers’ catalogue of images available for further use, from which he, like many professional photographers, makes his living.
(via) (See also: Rogers v Koons in wikiland)
