French Court Finds Jeff Koons Appropriated Copyrighted Photograph That “Saved Him Creative Work”

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Jeff Koons is a well-known U.S. sculptor. In 2013, one of his “Balloon Dog” sculptures was purchased for $58.4 million dollars, the highest price ever paid at auction for a work by a living artist. Koons is also famous for having faced several copyright infringement lawsuits in the U.S. and other countries.

On March 9, 2017, the Paris District Court determined that Koon’s one meter-tall porcelain sculpture, entitled “Naked” and depicting two nude children, infringed the rights of the deceased French photographer Jean-François Bauret in his 1970 black and white photograph, entitled “Children.” Although Bauret mainly worked in the advertising industry, “Children” is an example of the nude portraiture for which he was known in the photographic community. He died in 2014.

The Paris District Court’s decision illustrates some of the specificities of French copyright law, and demonstrates the recent influence of the European Court of Human Rights (“ECHR”) on IP matters.

Did the Paris District Court have jurisdiction?

Koons’ sculpture was created in the U.S. in 1988. However, Bauret’s widow only found out about it in 2014, when the Pompidou Center in Paris was advertising a Koons retrospective. The sculpture was originally slated to be part of this retrospective, and therefore images of it appeared in the exhibition’s promotional literature, even though ultimately it was not exhibited.

The Paris District Court ruled that it had jurisdiction only over the alleged exploitation of the sculpture in France, i.e. the reproduction of the work’s picture in France in the exhibition material and on the Internet by both the Pompidou Center and Jeff Koons LLC (Koons’ company). However, the Court did not accept jurisdiction with respect to any claims by Bauret’s estate regarding the creation of the sculpture in 1988, because that was “an act committed in the United States that falls outside the jurisdiction of French Courts.”

This decision is a reminder to U.S. businesses and artists unfamiliar with French copyright law that one should be careful when works of art which were created in the U.S. travel across the French border. This warning applies to the “digital” French border too. Although the issue was not specifically raised in this case, French Courts tend to accept jurisdiction over copyright infringement claims where the infringing material was accessible to French internet users.

Was the photograph original?

As explained in a previous post, under French law photographs are treated like all other works of art: they are protected provided that they are original, which means that the work must “reflect the artist’s personality.”

Koons argued that Bauret’s photograph was not original, but the Paris District Court rejected this argument. The Court recalled the social context of the 1970’s, noted the novelty of nude portraits at that time, and found in the photograph “an atmosphere of kindness and purity that shows the imprint of the author’s personality.” The photograph was therefore found to be sufficiently original.

Did the sculpture use the essential elements of the photograph?

The Court analyzed in detail the similarities and differences between the sculpture and the photograph (hairstyles, half-smiles, angle of the children faces, added accessories…). Although there were some variations, the Court found that one could “recognize and identify the models and the pose chosen by the photographer which are essential components of the photograph protected by copyright.” Therefore, the sculpture was an infringement of the copyright in the photograph.

The Parody Defense

Under the French Intellectual Property Code, the parody defense applies when a work of art evokes a previous work but is noticeably different from it, and constitutes an expression of humor or mockery.

Koons argued that his sculpture merits the protection of this defense because it was part of his Banality series, which aims to challenge traditional value judgments in the art world by elevating kitsch and pop-art works. But the Court rejected this argument because Koons had never quoted the photograph in his artistic discourse before the dispute: “as the photograph is practically unknown to the public, the sculpture could not provoke a reminiscence in the spectator’s mind to create a comic effect or even a critical one between the two works.”

The New “Freedom of Expression” Defense

As we previously discussed in an earlier post, “freedom of expression” is more and more often raised in France and Europe as a defense in copyright infringement suits. Here, Koons claimed that his sculpture should be protected by the freedom of expression enshrined in Article 10 of the European Convention on Human Rights. Koons explained that “Naked” transformed “the innocent couple of young children into a new Adam and Eve discovering desire and sexuality by using a small bouquet of flowers as the equivalent of the apple gift offered to Adam and a phallic shape pistil that attracts the eye of the young girl.” In support of this argument, Koons also referenced the U.S. “fair use” doctrine, arguing that freedom of expression “is a necessity to the development of art and artistic thought.”

However, the Court pointed out that Koons failed to explain why the use of the photograph as a starting point was unavoidable, and why there was a need to use this particular photograph to convey his message. In addition, the Court explained that public knowledge of the original work is crucial in “appropriation” and “transformative” art, but here there was no such knowledge of Bauret’s photograph. In the end, the Court found that that Koons’ appropriation was dictated mainly by an intention to save creative effort. Therefore, applying the law of copyright infringement was not a violation of Koons’ freedom of expression.

Even though the Court did not rule in Koons’ favor, its willingness to evaluate the freedom of expression defense is indicative of a shift in French copyright law. Traditionally, French Courts would only consider the defenses provided for in the French IP Code, which does not include freedom of expression. But here, the Court accepted freedom of expression as a potential independent defense in addition to those listed in the Code. This new perspective is in part based on a relatively recent decision rendered by the European Court of Human Rights (“ECHR”) in Ashby Donald v. France, Case No. 36769/08 (January 10, 2013). The ECHR is a supra-national Court established by the European Convention on Human Rights that hears claims alleging that a contracting State has breached that Convention.

In the Ashby Donald case, three photographers had published on their website pictures they had taken of a fashion show in Paris. The fashion houses that owned the copyright in the clothing designs depicted in the photographs objected, and the criminal section of the Paris Court of Appeal found the photographers guilty of copyright infringement. The photographers initiated an action before the ECHR, arguing that the French Court had violated the freedom of expression protected by Article 10 of the Convention. The ECHR declared that in cases where copyright – also protected by the Convention and its protocols – interferes with freedom of expression, a balancing test has to be conducted. The Court applied this balancing test and concluded that the French Court had not violated Article 10 because the purpose of the publication on a website dedicated to fashion was commercial (as opposed to artistic), and did not contribute to any important topic of public debate.

The French Supreme Court followed the Ashby Donald case in Malka v. Klasen, No. 13-27391 (May 15, 2015). In that case, the photographer Alix Malka alleged that painter Peter Klasen had appropriated into his paintings several of Malka’s fashion advertising photographs. The Paris Court of Appeal found Klasen liable for copyright infringement, but the French Supreme Court vacated the judgment, holding that the lower court should have explained in concrete terms whether it had fairly balanced the plaintiff’s intellectual property rights against the defendant’s freedom of expression.

Despite these cases, however, no clear set of criteria for applying the “freedom of expression” defense has been articulated by either the European Court or the French Supreme Court, which is unfortunate in terms of predictability.

The Cost of Banality

In the Koons case, the Paris Court awarded 10,000€ for the reproduction of a picture of the sculpture in the exhibition materials, and 4,000€ for displaying a picture of the sculpture on Koons’ website. The Court also awarded an additional 10,000€ for violation of Bauret’s moral rights, agreeing with Bauret’s heirs that Koons deliberately failed to properly credit Bauret.

To date, neither party has appealed this judgment. However “ce n’est qu’un au revoir” for Koons, as the French would say, because there is another copyright infringement lawsuit currently pending against him in the Paris District Court, for yet another Banality creation entitled “Fait d’hiver.” Notably, the Banality series also led to the high-profile U.S. matter of Rogers v. Koons, 960 F. 2d 301 (2d. Cir. 1992), in which Koons was held to have infringed a photograph of puppies with his String of Puppies sculpture.

To be continued…

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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