The Paris Court of Appeal upheld an earlier decision found Jeff Koons guilty of copyright infringement on one of his “Banality” sculptures. The Paris Court of Appeal even increased the amount of damages and costs that were originally granted in the first instance. Aside from the fact that fortunately it is quite rare for a famous artist to be found guilty of plagiarism, this case is also interesting because Jeff Koons used more or less every defense in the (French) book.
In late 2014 and early 2015, the Pompidou Modern Art Museum organized a retrospective of the work of Jeff Koons, which attracted thousands of visitors but resulted in several lawsuits.
On March 9, 2017, the Paris District Court found that Jeff Koons had reproduced the original features of a French photograph by Jean François Bauret for one of his Banality sculptures, which had “saved him creative work”.
The retrospective also prompted another French artist, Franck Davidovici, to personally sue Jeff Koons for an allegedly injurious sculpture. Davidovici also sued Koons’ company, the Pompidou Museum, and Flammarion, a top French publisher, which published a book with a reproduction of the sculpture in question.
This time the plaintiff had designed an advertisement in 1985 for a French fashion company called NAF-NAF. The ad below was published in several well-known magazines such as “Elle” and “Marie Claire”.
“Naf Naf” is the French name of one of Disney’s three little pigs, the brave and wise, who builds a brick and mortar house that can withstand the attack of the wolf. The title of the ad – “Fait d’hiver” (which literally means “winter event”) – is a play on words as “Fait Diver” means events such as accidents reported in local newspapers. The word “winter” also refers to the NAF-NAF fall-winter collection, which also includes the jacket worn by the brunette. This photo is quite eye-catching because the little pig is carrying a small barrel like rescue dogs carry.
The Koons sculpture in question was another piece in the Banality series entitled “Fait d’hiver” and is reproduced below.
Davidovici alleged that Jeff Koons violated his moral rights by using the work without his permission and violated his copyright law.
Jeff Koons tried almost every defense that can be brought in such a case, but none of them convinced the judges, and on November 8, 2018 it was found that Jeff Koons had infringed Davidovici’s copyright. Jeff Koons appealed, but the Paris Court of Appeals reached the same conclusion and increased the amount of damages and costs awarded.
The parody defense: tried again, failed again
As before the court judges, Jeff Koons argued that the sculpture fell into the parody defense.
This defense is laid down in the French Intellectual Property Law, but is in fact the implementation of Article 5 (3) (k) of the Copyright Directive 2001/29 / EC. The Court cited a ruling by the European Court of Justice that for the exception to apply, the work of art must be reminiscent of an existing work, but be significantly different from that earlier work and express humor or ridicule.
An example of a parody is the painting of Dali of Mona Lisa with a mustache.
Jeff Koons argued that the humor in his sculpture came from the incongruity of the scene: the woman is lying in the snow, clad in a sexy fishnet dress, and the animal she wants to save was a pig, a farm animal that symbolizes banality. This pig is there to free the young woman from the “fashion dictates” and the public from the “taste dictates” of the so-called “great art”.
The court ruled that even assuming the sculpture could be viewed as an expression of humor, the advertisement was not considered notorious for the sculpture being viewed as a parody.
Defense of freedom of expression: tried again, failed again
Koons tried again to rely on freedom of expression under Article 10 of the European Convention on Human Rights, but the judges followed the same lines of reasoning as in the Bauret case, including based on the decision of the European Court of Human Rights in the Ashby Donald case.
Jeff Koons argued that he added flowers and penguins to symbolize spring and life and that he wanted to get the message across that each individual must believe in his or her personal taste. Before the court of first instance, he had provided as an exhibit a copy of a decision by the US Court of Appeals for the second circuit in the Andrea Blanch case, in which Koons successfully relied on the defense of “fair use”. The French judges could have put this case aside by finding that the “fair use” doctrine simply does not exist under French law, but interestingly, they found that the US case was different in that Koons had no substantial part of it Blanch’s work. The US case was not discussed on appeal.
The French judges followed European case law and stated that they had to reconcile Davidovoci’s interests on the one hand and Koons’ freedom of expression on the other. Their conclusion was that it was not disproportionate to allow the plaintiff to enforce his rights.
Freedom of expression was therefore not a valid defense in this case.
The cost of this banality
The court of first instance had awarded a total of 207,000 euros in damages and legal fees, and the co-defendants, including the Pompidou Museum, were jointly obliged to pay that amount, which is quite common in copyright infringement cases. In the appeal process, the total amount to be paid was increased to 344,000 euros, which is quite high by French standards.
Koons would have been wise not to appeal, but predicting the outcome of a legal battle is more difficult than predicting the outcome of a fairy tale.
For those of you who read French, you can find a more detailed analysis of this decision in the article we published in the review.