In 1980, Art Rogers took a photograph of a couple holding a litter of puppies—titled Puppies—which he continued to sell copies of, license, publish, and display in various contexts. In 1987, Jeff Koons created the sculpture String of Puppies for an exhibit at the Sonnabend Gallery titled “Banality Show.” Without Rogers’ permission, Koons used Rogers’ postcard featuring Puppies to create his own work, removing Rogers’ copyright notice and specifically instructing his artisans to ensure that the sculpture would look just like Rogers’ photograph, but in color. Rogers brought a copyright infringement action against Koons and the Sonnabend Gallery in 1989.

In 1991, the district court granted summary judgment in Rogers’ favor, holding that Koons’ sculpture did not constitute fair use. In reaching this decision, the district court weighed the four factors of fair use with emphasis on the purpose and character of the use of the allegedly infringing work. Here, Koons argued that his adaptation was a parodic commentary about the banality in American society and thus protected as fair use. However, the district court found that Koons did not need to copy Rogers’ image for the purported parodic purpose because Rogers’ work was not the target of this commentary. Thus, the district court ordered Koons and the Sonnabend Gallery to deliver all infringing works to Rogers, and entered a permanent injunction barring Koons and the Sonnabend Gallery from making, selling, lending, or displaying any copies of works based on Puppies.

In 1992, the Second Circuit affirmed the district court’s opinion. The Second Circuit likewise carried out the four-factor analysis of fair use and found that Koons’ copying was “done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work.” The court additionally found that Koons copied the essence of Rogers’ photograph in total and that Koons’ works will likely harm Puppies market potential because of the sculpture’s commercial nature.