French newspaper Le Figaro reported this week that ad man Frank Davidovici is likely suing artist Jeff Koons for plagiarism.
The Centre Pompidou in Paris is now showing a retrospective of Jeff Koons’ work. Among them is Fait d’Hiver, a porcelain sculpture representing a pig looking at the torso of a woman lying in the snow. The woman is rather scantily dressed as her bare chest is visible through her fishnet top. Her body has been cut below her breasts, along with her left hand, which lies separated from her body on her left side. The pig, a rather plump, but very clean and pink specimen, has two penguins as companions. He carries around his neck a garland of flowers and a barrel, such as those used by Saint Bernard dogs to rescue people lost in the snow.
The title of Koons’work refers to the tragic event it depicts and is a play on words: “fait divers” means “news in brief,” that is, the police blotter which informs us about crimes happening in our country or our area. “Fait d’Hiver” literally means “winter fact,” and is a good choice for a work depicting “news in brief” (was this woman killed?) which probably happened during the winter.
Fait d’Hiver is also the title of a 1985 Naf Naf ad, which also represents a woman lying in the snow, eyes wide open. One cannot see her body below her torso, and only her right hand and arm are seen in the ad. She is dressed in a ski jacket, a Naf Naf Doudoune, which was the outfit favored by many French women during that nasty cold 1985 winter. A piglet is seen on the right of the ad with a Saint Bernard barrel around its neck, and the ad bears the Naf Naf slogan: Le Grand Méchant Look (The Big Bad Look), which is a play on words with “Le Grand Méchant Loup” (The Big Bad Wolf). Indeed, Naf-Naf is the French name of one of the three pigs which Big Bad Wolf would like to eat in the Walt Disney cartoon (the French names of the other two pigs are Nif-Nif and Nouf-Nouf, should you care to know).
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Naf Naf is a French clothing company which had its moment of glory in the Eighties, building its success on its combinaison, an overall sold all wrinkled and available in many colors with the Naf Naf logo stamped in black on the side of the chest. These combinaisons sold in the thousands in the 80’s, and Naf Naf used the success of this model to build a retail empire. Frank Davidovici started creating Naf Naf ads in 1984, mixing the Le Grand Méchant Look slogan with pictures of a pig mingling with a fashion model shown in a bizarre situation.
According to the Le Figaro article, a bailiff took several pictures of Fait d’Hiver last week in Beaubourg, a move which seems to anticipate the filing of a complaint for plagiarism. What could be Jeff Koons’ defense? He unsuccessfully claimed fair use when sued for copyright infringement in the U.S. in 1992, but won a somewhat similar case in 2006. Could he be as successful in France?
French law does not have a fair use defense as comprehensive as the U.S. one, but article L. 122-5 of the Intellectual Property Code enumerates several uses of a protected work which the right holder cannot oppose. “The parody, pastiche and caricature, observing the rules of the genre” are among these exceptions. One should note that this article is similar to article 5(3)(k) of the InfoSocDirective (“use for the purpose of caricature, parody or pastiche.”)
French judges consider a parody to be a transformative work created to make the public laugh, or at least smile. There must be no confusion possible with the original work and the public must understand that the derivative work was created as a parody, that is, to mock to original work. This is consistent with the recent CJEU Deckmyn case, commented on this blog by Eleonora here.
The CJEU held that the concept of parody is an autonomous concept of EU law and must be interpreted uniformly throughout the European Union. For the CJEU, a parody’s essential characteristics are “to evoke an existing work, while being noticeably different from it” and “to constitute an expression of humour and mockery.”
The hurdle Jeff Koons may have to face is to prove that the original 1985 ad is still remembered in such a way that, when seeing the Fait d’Hiver sculpture, the public recognizes it as a parody of the Naf Naf ad. The sculpture was created in 1988, three years after the original ad. It will be interesting to see if Jeff Koons will try to prove knowledge of the ad by the general public at the time of the creation of his work, and further argue that current knowledge of the ad is irrelevant for purpose of deciding if his work is a parody.
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