Body/Performance art loses in court

Orlan

Last month, the Paris Court of Appeal handed down its decision in the case between Lady Gaga and the French body and performance artist Orlan (Paris Court of Appeal, 1^st ch. 5^th pole, 15 May 2018, No 16/1477: Porte k/a Orlan v Germanotta k/a Lady Gaga and others). In this dispute, the French performance artist argued that Lady Gaga’s album cover and video clip for the record ‘Born this way’ reproduced a number of her works and traits of her personality – most notably some of her body transformation including her face implants. 

Orlan is a performance artist best known the surgical ‘re-creation’ of her face and body, which she has staged over several years as a criticism of the man-made notion of beauty (here and here). This aspect of her work fits within a movement of contemporary art known as ‘Body Art’ or ‘art charnel’, which uses the human body as a primary medium for creation, as Orlan has done through her ‘performance-surgeries’, perhaps pushing this movement to its limits. Other aspects of Orlan’s work can be associated with the more general, and mainstream, movement of performance art, which consists of staging installations and three-dimensional artworks involving a performance element (here). In the case, Orlan alleges that Lady Gaga reproduced elements of her body and performance artworks without permission.

Orlan in 'Woman with Head' (1996) (left)  vs Lady Gaga 'Born this way' (2011) (right)

This dispute Gaga touches upon a longstanding debate in the art world: can body art or performance art be protected from commercial appropriation? In both principle and theory, at least in France, the answer is "yes". And so it was confirmed by the Paris Court of Appeal in the case. However, it does not mean that protection for works of body or performance art is easily secured in practice. This is a point well illustrated by the case, which saw Orlan suffer defeats in both the first instance and on appeal. 

Orlan had originally initiated proceedings before the Paris Tribunal in 2012, claiming author's rights, the right to her own image and Lady Gaga’s parasitic commercial behaviour. The claim of parasitic commercial behaviour or parasitic behaviour is a derivative of the better-known action of unfair competition under French law, also known as ‘disloyal competition’ (‘concurrence déloyale’).

Body art

After losing her case on all counts at first instance, on appeal, Orlan narrowed down her claims to compensation for the infringement of her image rights and for Lady Gaga’s parasitic behaviour. The appeal decision focused on the latter claim, dismissing the infringement claim in short order. The action against parasitic behaviour is also the form of protection that may be more promising with regard to protecting performance art from misappropriation. This might explain the close attention that the court paid to this point in its decision.

Under French law, the action against parasitic behaviour provides a remedy in the form of damages whenever an ‘economic agent’ (an individual or a company) seeks to ride the coat tails of the efforts, investments and savoir faire of another, with a view to  profiting from such behaviour without incurring any expenses of  its own [see Court of Cassation, Commercial Chamber, 26 January 1999, No 96-22.457 here]. The notions of ‘efforts’, ‘investments’ and ‘savoir-faire’ are comparable to the concept of goodwill in the context of the tort of passing off, subject to the fact that it can also include reputation under some jurisprudence. 

In this regard, the action of parasitic behaviour is quite similar to the more general action of unfair competition. The main difference between the two is that with respect to parasitic behaviour, the parties do not need to be in competition with each other, nor is there any need to show any confusion between the businesses, or risk thereof, on the part of consumers. Attempting to accrue a benefit from free-riding on the goodwill of another business suffices to give a  cause for action. One can see how potentially versatile this type of protection can be where the image, design, name or brand of a claimant fall short of securing trade mark or copyright protection. 

Lady Gaga with face implants

Bringing this back to Orlan’s case, the French contemporary artist was thus left with two things to prove: (1) that she was an ‘economic agent’; and (2)  Lady Gaga sought to free-ride on her goodwill by imitating elements of her work in her video clips. It follows from the second point that Orlan must enjoy goodwill susceptible to proof.  

Neither the Paris Tribunal nor the Paris Court of Appeal took issue with Orlan’s argument that, whilst an artist, she could also be regarded as ‘an economic agent’ (‘agent économique’). However, the Paris of Appeal, like the Paris Tribunal before it, disputed the extent to which Lady Gaga’s alleged ‘borrowings’ had been made with the intention to free-ride on the goodwill of another artist enjoying a lesser renown than her own. Indeed, Lady Gaga and her creative team disclosed that they did not know of Orlan nor were they familiar with her work. 

The defendant pointed to other sources of inspiration, such as Alexander Macqueen’s 2010 runway fashion show, in which he too used facial prosthetics for the make-up of his models. Finally, the Paris Court of Appeal concluded that the similarity between Lady Gaga’s and Orlan’s works was too weak to amount to parasitic behaviour, confirming the first instance decision on all points. 

For these reasons, Orlan’s claims were also rejected by the Paris Court of Appeal. The performance artist was ordered to pay 10,000 euros in damages to Lady Gaga herself, and 5,000 euros to the singer’s producers for costs. Whilst the door for the protection of body/performance art against commercial appropriation may still be open, Orlan’s case has not blazed new trails in its direction.