Reference no: EM131657155

Question: Visual artist Jeff Koons created a painting called "Niagara." The painting consisted of fragmentary images collaged against the backdrop of a landscape. It depicted four pairs of women's feet andlower legs dangling prominently over images of confections-a large chocolate fudge brownie topped with ice cream, a tray of donuts, and a tray of apple danish pastries-with a grassy field and Niagara Falls in the background. The images of the legs were placed side by side, each pair pointing vertically downward. Koons drew the images in "Niagara" from fashion magazines and advertisements. One of the pairs of legs in the painting was adapted from a copyrighted photograph taken by Andrea Blanch, an accomplished professional fashion and portrait photographer. The Blanch photograph used by Koons in "Niagara" was titled "Silk Sandals." It appeared in the August 2000 issue of Allure magazine. While working on "Niagara" and other paintings, Koons saw "Silk Sandals" in Allure. In an affidavit submitted in the litigation referred to below, Koons stated that "certain physical features of the legs [in the photograph] represented for me a particular type of woman frequently presented in advertising." He considered this typicality to further his purpose of commenting on the "commercial images . . . in our consumer culture." Koons scanned the image of "Silk Sandals" into his computer and incorporated a version of the scanned image into "Niagara." He omitted certain aspects of the scanned image from his painting and modified certain other aspects of the image, such as by making the woman's legs angle downward rather than upward (the opposite of how they had appeared in Blanch's photograph). Koons did not seek permission from Blanch before using her photograph. He later earned approximately $125,000 from financial exploitation of "Niagara." When Blanch sued Koons for copyright infringement, what defense would Koons have attempted to establish? Did Koons succeed with that defense?