Jeff Koons Parody Defence Fails Inwards French Copyright Infringement Case

On March 9, 2017, the Tribunal de Grande Instance de Paris, the Paris trial Court establish that Jeff Koons had infringed the copyright of French lensman Jean-François Bauret, equally he had reproduced, without authorization, 1 of Bauret’s photographs to create his Naked sculpture.

Jean-François Bauret took inwards 1970 a dark in addition to white film of 2 naked children, a man child in addition to a girl. The photograph, Enfants (Children), was reproduced inwards 1975 on a postcard, in addition to also published inwards 1984 inwards a book, both with the ascendancy of the author, right away deceased.

Bauret’s heirs discovered inwards 2014, past times chance, that Jeff Koons had created inwards 1988 a china sculpture resembling Enfants, Naked, which is move of Koon’s Banality series. The heirs sent a cease in addition to desist missive of the alphabet to Koons, demanding that Naked survive retired from the Jeff Koons retrospective at the Pompidou Center inwards Paris, presented to the populace inwards 2014-2015. The sculpture was in conclusion non shown there, because it had been, according to Koons, damaged when shipped to Paris.

The heirs in addition to so sued Jeff Koons in addition to the Pompidou Center for copyright infringement in addition to damages. As Koons had created his piece of work inwards the U.S., the French courtroom declared having no jurisdiction over the alleged copying, exclusively jurisdiction over the representation of Naked inwards France. The piece of work has never been shown inwards France, simply was included inwards the catalog in addition to promotional items of the retrospective. Let’s regime annotation that Koons had to withdraw some other Banality sculpture from the same retrospective, equally it allegedly infringed the copyright of some other French lensman (see here). 

Is Enfants an master piece of work of art, protected past times French copyright?

Koons in addition to the Pompidou Center argued inwards defense forcefulness that Enfants was non master plenty to survive protected past times French copyright, the droit d’auteur. The Court did non agree, citing the Court of Justice of the European Union (CJEU) Eva-Maria Painer. v. Standard Verlags GmbH et al. instance [see here for Eleonora’s comment on the case], where the CJEU held that a photograph tin survive protected past times copyright, nether Article vi of Directive 93/98, if the photograph is an intellectual creation of the writer which reflects her personality. This must survive verified past times the national Courts, which the Paris Court undertook to do.

The Paris Court  explained that “[t]he writer must survive able to explicate the elements which larn far possible to empathize his creative seek in addition to what he claims equally the imprint he has placed on this piece of work in addition to which stems from his personality.”

The Court noted that Mr. Bauret had built a whole corpus of piece of work unopen to human nudes, presented non inwards a sexual way, simply instead equally a agency to alive au naturel. He wanted to exhibit inwards Enfants “a message of innocence in addition to purity, without sappiness.” Mr. Bauret directed the pose taken past times the 2 children, in addition to the photograph was non the production of a “shooting session of children playing freely.”

The Court concluded that inwards the photograph “an atmosphere of tenderness in addition to purity reveals the imprint of the personality of the author.”

Is Naked an unauthorized reproduction of Enfants?

The Paris Court in addition to so compared the 2 works, Naked in addition to Enfants. It establish that “[t]he pose of the children is visually recognizable inwards the prototype of the Naked sculpture in addition to the children are identifiable with the models chosen by Jean-François Bauret whose morphology is reproduced.” The Court noted that Jeff Koons had placed the children on a colorful heart-shaped pedestal, surrounded past times multicolor flowers, in addition to that, dissimilar inwards the master picture, the man child was giving flowers to the girl. Also, the tridimensional sculpture allow the viewer to plow unopen to the work.

However, these differences “do non foreclose recognition in addition to identification of the models in addition to pose chosen past times the lensman which are essential protected elements of the photography.” The Court establish Naked to survive a composite novel work, which incorporated the Enfants pre-existing work. As Koons had non sought Bauret’s permission to job Enfants, the Paris Court concluded that Naked was an illegal reproduction.

Is Naked a parody of Enfants?

Jeff Koons asserted a parody defense. Article L. 122-5 of the French Intellectual Property Code provides that the writer cannot forbid for certain uses of his work, parody alongside them. The Paris Court cited the CJEU Deckmyn v. Vandersteen case, where the CJEU explained that a parody must “evoke an existing piece of work piece beingness noticeably different from it, and, secondly, to constitute an aspect of sense of humour or mockery” [see here for Eleonora’s comment on the case].

The Paris Court did non uncovering that Naked was a parody, noting that “it is the outset fourth dimension that [Koons] evokes the existence of this supposedly parodied piece of work which he never quoted inwards his artistic discourse to illustrate his inspiration in addition to he maintains that he is really distanced from it.”

Does the Paris Court translate Deckmyn correctly? Does a parody necessarily mock the protected piece of work which it evokes? Or tin the parody evoke the protected piece of work equally a symbol of something that the parodist wants to brand fun of? This is what the CJEU held inwards Deckmyn:

“[T]he essential characteristics of parody, are, first, to evoke an existing work, piece beingness noticeably different from it, in addition to secondly, to constitute an aspect of sense of humour or mockery. The concept of ‘parody’, inside the pregnant of that provision, is non patch of report to the weather that the parody should display an master grapheme of its own, other than that of displaying noticeable differences with abide by to the master parodied work; that it could reasonably survive attributed to a mortal other than the writer of the master piece of work itself; that it should relate to the master piece of work itself or lift the source of the parodied work.” (My emphasis).

There is no requirement that parody directs its sting at the master work…

Naked is move of a serial of sculptures named Banality. The Paris Court described the serial equally “a novel approach of “ready-made” which reveals inwards a mixture of pop fine art in addition to kitsch, objects related to pop culture.” The Court thence described Koons’ creative procedure equally taking an object related to pop culture, mixing it with pop fine art to brand its kitsch pop up. The resultant is a ready-made slice of art.

One tin scrap that such Definition of Koons’ serial contradicts the really decision of the Court virtually the lack of parody, fifty-fifty if 1 interprets Deckmyn equally pregnant that a piece of work of fine art does receive got to parody the piece of work it is evoking to practise goodness from the parody exception. The Court did non specify what Koons “reveals” (dévoile) inwards his series, simply 1 tin suppose the courtroom meant to tell he reveals the banality behind pop culture.

In our case, Naked brings to hear the Hummel figurines, many of which receive got a blood brother in addition to a sis equally subject (see here for example). Kitsch indeed. Koons seems to comment on it past times inserting flowers, hearts, in addition to pedestal, equally banal props of cuteness. 

Anyway, this instance shows how courts persuasion parody differently from both sides of the Atlantic.  In Cariou v. Prince, the Second Circuit establish that it was non necessary that Richard Prince had commented on the piece of work of Patrick Cariou for the fair job defense forcefulness to survive successful. It is truthful that the fair job defense forcefulness has a much broader reach than the European Union parody defense.

Jeff Koons Banality serial has also provided Rogers v. Koons to U.S. copyright instance law, where the Second Circuit establish that Jeff Koons had infringed the copyright of the writer of a photograph representing a duet belongings puppies, which Koons reproduced inwards a sculpture. Koons had unsuccessfully asserted fair job equally a defense, but, inwards lite of Cariou, the Second Circuit would probable right away uncovering it is fair use. Ready Made artists, Appropriation artists, proceed creating! Copyright constabulary needs you. 

Image of Centre Pompidou is courtesy of Flickr user cwywy007 nether a CC BY-NC-ND 2.0 license.

Image of Jeff Koons plan is courtesy of Flickr user Jürgen Fenn nether a CC BY-ND 2.0 license.