Two works from Jeff KOONS which had been selected for a retrospective exhibition dedicated to this artist at the Centre Pompidou museum in Paris from 26 November 2014 to 27 April 2015 have been largely commented by the press.
The first piece of work, called “Fait d’hiver” and the second one called “Naked” are part of a series of works entitled “Banality”.
The first one – Fait d’hiver – is a porcelain sculpture made in 1988. It represents a pig coming to assist a woman lying in the snow. Just after being exhibited, it was removed because Francis Davidovici complained that this sculpture was imitating one of his advertising campaigns designed in 1985 for the brand “Naf Naf”.
The second one – Naked – is a porcelain sculpture representing two naked young children which will probably never be showed during this retrospective. While it was in transit between the US and France, the wife of the photographer Jean-François Bauret (who died in January 2014) would have summoned Jeff Koons for plagiarism. The sculpture allegedly imitated one of the photographer’s pictures.
Jeff Koons’s creative process, alike that of other contemporary artists, relies mainly on a reference to other art works. This American artist has already been sued for infringement in the US because of exhibitions of some pieces of the series “Banality”. These works are inspired from existing works designed from trade objects. They are also inspired from photos published in the media. Such works which are directly inspired from existing works while adapting them to new supports illustrate some of the difficulties for copyright law in making a clear distinction between an authorized inspiration and a forbidden imitation.
Several questions arise:
- Is an artist allowed to design a piece of art directly inspired by another one without asking an explicit authorization of its author?
- How to define clearly the limit between inspiration and reproduction? Between inspiration and infringement?
- When can we find there is plagiarism?
First, let’s remember that plagiarism, which is generally defined as the reproduction of the content of somebody else’s work, is not in itself a legal concept and is punishable only when the elements of infringement are found.
In France, the Article L. 122-4 of the Intellectual Property Code provides that “Any total or partial representation or reproduction done without the consent of the author or his/her eligible parties or legal successors is unlawful. It is the same for translation, adaptation or transformation, arrangement or reproduction through any kind of art work or process.”
However, in order to be able to punish an infringement act, it is necessary to determine whether the elements that have been reproduced or adapted are effectively protected by copyright. In particular, one must establish whether it is only using an idea or of the form which is expressing the idea. In accordance with judicial precedents of the interpretation of the Article L. 111-1 of the Intellectual Property Code, it is only the material expression of ideas that are concretized by the design of a work which is protected by copyright. The only notion of using another artist’s idea does not constitute copyright infringement.
So, concerning the sculptures of Jeff Koons which reproduce and adapt photos and pictures, do they just take up other artists’ ideas or do they really reproduce their concrete form?
In order to be able to decide whether there is infringement; one must take into account the relative importance of the content which has been reproduced. In other words, to what extent has the author brought about some originality and personal mark. It would seem that the sculptures of Jeff Koons do not only take after other artists’ ideas but also some salient characteristics of the form of their works. To this extent, French courts could conclude to an infringement offense.
Nevertheless, even if we consider that the litigious works are reproductions or adaptations of other works, one must still ask ourselves if this kind of imitation is not authorized on the grounds of a copyright exception, such as the right of parody. The Article L. 122-5 of the Intellectual Property Code provides that: “When a work has been divulgated, the author cannot prohibit (…) 4° parody, pastiche or caricature…”
The equivalent exception in US law, called “Fair Use”, has been argued by Jeff Koons before the American Courts. However, these courts have not always accepted such an exception, since it would appear that he lost two of his three trials.
If the judicial procedures concerning the sculptures “Fait d’hiver” and “Naked” eventually come to a final judgment, without any mediation or transaction to stop them, it will be interesting to know what will be the decision made by the French Courts with respect to the application of the law related to copyright infringement.