A Review (Reframing) of Rogers vs. Koons

Art Rogers

Jeff Koons

As the Supreme Court put it in 1954, “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ “Copyright could never be an absolute right, like freedom of speech or assembly, because it was a form of private property limited by public considerations. The clash of individual rights and public welfare, or different views of public welfare, has kept copyright law in a permanently unsettled state. (via Design Observer 2008)

While the courts ruled in favor of Rogers, the case now seems worthy of academic review, as issues of copying and appropriation are in plenty supply.  A culture of copying and sharing, enabled by an exponential increase in the adoption rates of technologies that encourage infringing behavior, has evolved.

One interesting facet to consider is what the proliferation of these technologies does to the marginal value of an image, a recording, or any idea delivered in some definite, digitally transferable, form.  As the supply of copies becomes a function of the ease of production and distribution, the social cost of policing increases, eventually to a point where the cost of policing is higher than the cost of not policing.  In economics, this problem is handled by the Coase Theorem’s approach to property rights and associated economic rents. 

But what does this have to do with Rogers vs. Koons? It is relevant in that the perspective of the lawmakers who developed our intellectual property protections was defined by an economy centered on industrial behaviors and philosophies.  Not only was the Internet an unknown, but an understanding of what the proliferation of sharing technologies (technologies that now constitute the core production of multiple markets) would mean for the expected behavior of consumers and for how the creative class functions, was not conceivable.  Jeff Koons was inspired by a photograph, but his sculpture is not the photograph.  It bears some resemblance, but the color, facial expressions, and look of the dogs is distinctive from Rogers’ picture.  Koons was inspired by the image, and so he made a new artwork of it, as that is his vocation.  In a time where nothing is new, and where our influences are easily documented, we must encourage derivative inspiration/creation through the leniency of our intellectual property laws.  That is, the total output of the market for creative goods may be greater, and thus produce higher revenues, where our laws support the cultural movement towards copying, sharing, and derivative productions.

Given the increasing cost of policing (and decreasing marginal value of digitally distributable information)  IP infringements, and the cultural/creative behaviors that sharing technologies have fostered, we must reconsider the purpose and directive of our IP regime.  This idea is not new and has an exhaustive academic literature, but the argument’s value increases month over month as more cases are decided and as more corporations take protectionist actions with the handling of their intellectual property.  The future of our economy may not be about intellectual property, it might be about the products produced by the sharing of intellectual property. Instead of trading in ideas, might we do best to trade in the products of our ideas? Might a legal permission to copy in the digital realm become an outlet for extraordinary creative output, and best fuel our economic engine?

J N O M I C S