At the end of 2014 and beginning of 2015, the Pompidou Museum organized a retrospective of the work of Jeff Koons, which attracted thousands of visitors but gave rise to several lawsuits.
We commented on this blog on a decision rendered by the Paris District Court on March 9, 2017 in which the Court found that for one of his Banality sculptures, Jeff Koons had reproduced the original features of a French photograph created by Jean François Bauret, which had “saved him creative work.”
The retrospective also prompted another French artist, Franck Davidovici, to sue Jeff Koons personally over an allegedly infringing sculpture. Davidovici also sued Koons’ company, the Pompidou Museum, and Flammarion, a top French publishing house which published a book containing a reproduction of the sculpture in question.
This time, the plaintiff had designed an advert in 1985 for a French fashion company called NAF-NAF. The advert, reproduced below, had been 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 title of the advert “Fait d’hiver” (which means literally “winter event”) is a play on words since “fait divers” means events, such as accidents, which are reported in local newspapers. The word “winter” also refers to NAF-NAF autumn-winter collection which included the jacket worn by the brunette. This photograph is quite striking because the little pig is wearing a small barrel of the type rescue dogs wear.
The Koons sculpture in question was another piece of the Banality series also entitled “Fait d’hiver,” reproduced below.
Davidovici claimed that Jeff Koons had violated his moral rights by using the work without his permission and infringed upon his copyright.
Jeff Koons tried several defenses but none of them convinced the Judges.
The Parody Defense: Tried Again, Failed Again
As in the previous case, Jeff Koons argued that the sculpture fell within the parody defense.
This defense is set out in the French Intellectual Property Code but is, in fact, the implementation of article 5 §3 (k) of the 2001/29/CE Copyright Directive. The Court quoted a decision rendered by the European Court of Justice that stated that for the exception to apply, the work of art must evoke an existing work but differ notably from that previous work and express humor or mockery.
An example of what would certainly qualify as a parody is the painting by Dali of Mona Lisa with a moustache.
Jeff Koons argued that the humor in his sculpture stemmed from the incongruity of the scene: the woman is lying in the snow, dressed with a sexy fishnet gown and the animal who comes to rescue her was a pig, a farm animal which symbolizes banality. That pig is there to free the young woman from the “fashion diktats” and to free the public from the “good taste diktats” of the so-called “Great Art.”
The Court held that even assuming that the sculpture might be seen as an expression of humor, the advert was not effectively notorious for the sculpture to be regarded as a parody.
The Freedom of Expression Defense: Tried Again, Failed Again
Koons tried once again to rely on freedom of expression as set out in Article 10 of the European Convention of Human Rights but the judges followed the same reasoning as in the Bauret case and also relied on the decision rendered by the European Court of Human Rights in the Ashby Donald case.
Jeff Koons argued that he had added flowers and penguins which symbolize spring and life and that his intention was to convey the message that each individual must have faith in his/her own personal tastes. He provided as an exhibit a copy of a decision rendered by the U.S. Court of Appeals for the Second Circuit in the Andrea Blanch case in which Koons successfully relied on the “fair use” defense. The French judges could have put this case aside by stating that the “fair use” doctrine simply does not exist under French law but interestingly, they noted that the U.S. case was different in that Koons had not used a substantial part of Blanch’s work.
The French judges held that by using the advert, Koons did not seek to provoke a debate of general interest about art but to save creative work. He had confessed that the photograph was particularly striking and imaginative.
Freedom of expression was therefore not a valid defense in this case.
The Cost of this Banality
A total amount of 148,000 euros was awarded by way of damages and the co-defendants, including the Pompidou Museum, were held jointly liable to pay that amount, which is fairly usual in copyright infringement cases.
What is less usual is that the Court treated the Museum more favorably than the other co-defendants by holding that amongst the co-defendants, the Museum’s contribution could not exceed 40% because of the active part that Jeff Koons had taken personally in this exhibition as in others.
What is also surprising is that the Court noted that during the negotiations of the agreement between Koons and the Museum, the initial draft put forward by the Museum contained an indemnification clause but Jeff Koons refused it. In other circumstances, one could have taken this as evidence that the Museum had accepted to bear the risks…
court have to look at every direction of report to pass it