Without seeing the Popeye sculpture and figurine in person, it’s hard to speak with definitiveness, but after closely examining the available photos of each, Koons’s sculpture looks like an exact 1:1 replica of the Dark Horse toy. Just take a look at the opened can top—it is copied down to the last detail in a way that could not be mere coincidence.
Now, before Koons made this Popeye sculpture, he also created an oil painting in 2008 called “Triple Popeye.”
The painting is a dead giveaway that it’s based on a photo of the toy. The most obvious giveaway that Koons used the toy as the basis for his painting and sculpture is the tank tattoo on Popeye’s left arm. While Popeye will occasionally sport a tattoo on his upper arm, it is not a specific design, and I have never seen that tank design used on anywhere but this toy.
I don’t know who designed the toy—Leslie Cabarga? Stephen DeStefano?—but perhaps they could confirm whether their design of Popeye was an original pose that was unique to that PVC figure line or if it was an existing pose and design?
So what does all this mean? The sculpture that Koons sold at Sotheby’s last night does not appear to have been done in collaboration with Popeye’s owner, King Features. [See update #2 below: King Features DID give permission for Koons to copy the toy.] The clearest evidence of that was that the Sotheby’s promo video used only public domain shorts and none of the copyrighted films. It would stand to reason then that Koons also didn’t work with Dark Horse to license their Popeye toy as the basis for his sculpture and painting.
Is this legally actionable? That’s a question for lawyers. Koons could, of course, claim fair use, and that is certainly arguable in the case of the painting. The sculpture is another question though. Fair use gives a lot of leeway to artists, but the four factors used to determine fair use don’t necessarily give an artist the right to exactly reproduce an original object for commercial resale. Shepard Fairey, whose Obama “Hope” poster was an even more transformative use of its original source photo than this Popeye sculpture is of its source, still ended up in legal trouble. Fairey ended up settling out of court with the Associated Press news agency after a judge told him he would lose the case.
UPDATE #2: According to this 2012 article in Art Newspaper about Koon’s numerous lawsuits over copyright infringement, Koons received permission from King Features to use Popeye for this sculpture. So, no infringement here. One now wonders if the work-for-hire artist who got paid to design a plastic toy, and instead wound up designing a $28 million sculpture, received any additional compensation? (Thanks to the commenter “byarhouse” for pointing this article out.)
UPDATE #1: In 1992, Jeff Koons was involved in a lawsuit, Rogers v. Koons, in which he made a sculpture based on a photograph of a man and a woman holding puppies. He argued that it was a fair use parody and lost the case. According to Wikipedia:
The Court found both “substantial similarity” and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying, a measure for evaluation. Thus the sculpture was found to be a copy of the work by Rogers.
On the issue of fair use, the court rejected the parody argument, as Koons could have constructed his parody of that general type of art without copying Rogers’ specific work. That is, Koons was not commenting on Rogers’ work specifically, and so his copying of that work did not fall under the fair use exception.