AMYADLER: I think it’s important to understand that the law has changed dramatically since Rogers v. Koons was decided in 1992.
NARRATOR: Amy Adler.
AA: And the main question now that courts have to consider according to the Supreme Court is whether the secondary use is transformative.
The best way to describe the test is to say whether the second work has a new purpose or new meaning or message. And I think—although courts have been all over the place in trying to figure out how to determine what meaning or message really is—one can see that String of Puppies would—should—come out differently under a test that asked that. The other change in the law that occurred is that the court de-emphasized the commercial inquiry, and stopped looking at whether the second artist was making money as the determinative factor. So the fact that Koons profits from his art was no longer determinative.