Jeff Koons loses (again) in France: his Fait d'Hiver found to infringe copyright in Franck Davidovici's own Fait d'Hiver

A little over a year ago, The IPKat reported on the then fresh decision of the Paris Court of Appeal, which had upheld the decision at first instance in a copyright infringement case originally brought by the estate of photographer Jean-François Bauret against the well-known (also to copyright litigators) US artist Jeff Koons and the Centre Pompidou.

The news has reached this blog that another copyright decision has recently been rendered against Koons.

Background

The case is once again one of copyright infringement. It was originally brought by artist and photographer Franck Davidovici and concerned the alleged reproduction of his work Fait d’Hiver, which he realized as a freelance artist for a 1984 Naf Naf advertisement, in Koons’s 1988 porcelain work, also titled Fait d'Hiver.

Davidovici's Fait d'Hiver

Koons's Fait d'Hiver

Koons’s work, which is part of the Banality series (one which copyright lawyers are well acquainted with) had been inter alia on display at the Centre Pompidou in Paris in 2014.

Davidovici’s action was directed at Koons, the Centre Pompidou, the Fondazione Prada (this owns the artwork) and Flammarion (publisher of a book reproducing the sculpture).

At first instance, the Tribunal de Grande Instance de Paris sided with the claimant, and rejected Koons’s argument that his work would be protected as a parody of Davidovici’s photograph.

Following an appeal, last month, the Paris Court of Appeal upheld (decision 34/2021) the decision at first instance and found Koons liable of copyright infringement.

Applicable law

Koons had argued that US law, not French law, would be applicable to the dispute at hand by means of Article 8(1) of the Rome II Regulation. This would be so because: (1) his own work had been realized in the US; (2) it had been on display for the first time at the Whitney Museum in Manhattan; and (3) his internet website jeffkoons.com, it being in English, is primarily intended for the American public.

The court (correctly in my view) rejected this argument, reasoning that the action concerned: (a) the Parisian exhibition of the sculpture; (b) the reproduction thereof in a book jointly published by Flammarion and the Centre Pompidou and sold in France; and (c) the accessibility of Koons’s website from France.

Originality of Davidovici’s photograph

The court also reviewed the claim that Davidovici’s photograph would lack originality in that it would consist of ideas or clichés (the pig was already present in the NAF NAF brand) or commonplace concepts (eg, the representation of a young woman in a prêt-à-porter advertisement).

The court rejected it and noted that Davidovici had illustrated the ‘free and creative choices’ that he had made when realizing his photograph so that his ‘personal touch’ was visible in the creative result. Such choices did include:

• The representation of a young woman lying down in the snow, whereas such a position is per se uncomfortable due to the feeling of cold that it provides;
• The representation of a pig in the snow: this animal breeding is usually represented in hay, liquid manure or mud;
• The addition of a Saint Bernard keg, which is typically used for dogs of the eponymous breed;
• The specific positions of the body, hands, face and hair of the young woman, as well as her make-up, which evokes in the viewer a feeling of languor or distress;
• The choice of the work’s title, which evokes an accident occurred due to an avalanche;
• The unusual confrontation between an elegant woman and a pig.

As a result, it rejected the appellants’ claim.

Prima facie infringement

With a line of argument that was also used in the past, the appellants had submitted that the first instance court had unduly overlooked to consider the differences between Davidovici’s photograph and Koons’s sculpture, including the difference in the message conveyed by them.

The court rejected this argument, noting that – despite the differences between the two works – Koons’s work had incorporated original elements of Davidovici’s photograph, as identified above.

As such, it amounted to a reproduction in part of Davidovici’s photograph, in accordance with Article L 122-4 CPI.

Parody and freedom of artistic expression

As it was also done in the Bauret case, Koons and his co-defendants had argued that no infringement could be established, due to the applicability of the parody defence under Article L 122-5 CPI and the need to safeguard freedom of artistic expression pursuant to Article 10 ECHR (one wonders: was quotation considered at all as a possible defence?).

As it happened in the past, the court rejected these arguments.

Starting with parody, the court referred to the decision of the Court of Justice of the European Union (CJEU) in Deckmyn [Katposts here]. Assuming that Koons’s work could be regarded as an “expression of humour or mockery” (which, according to the court, was not a given), it failed in any case to satisfy the second prong of the Deckmyn test, that is the requirement to “evoke an existing work while being noticeably different from it”.

Turning to freedom of expression, the court recalled that such freedom is not absolute (see Article 10(2) ECHR) and that it must be balanced against third-party rights, including copyright, in accordance with Article 27 of the Universal Declaration of Human Rights. In the present case, freedom of expression was restricted by Article L 122-4 CPI. According to the court, such restriction was proportionate and necessary.

Comment

The IPKat's own Fait d'Hiver

The reasoning of the Paris Court of Appeal is very similar to that developed in the Bauret case, also considering the similar factual background and the defensive strategy adopted by Koons and his co-defendants. Koons lost then and lost again now.

Besides the private international law angle, the broader relevance of the decision lies in 3 key aspects.

First, the standard of infringement. In case there was still any doubt, the test to be applied is the one that the CJEU set forth in Infopaq (an infringement case, before being an originality case) [Kat-anniversary post here]: there is reproduction in part of a work when what has been reproduced is original in the sense that it is its author’s own intellectual creation, the result of free and creative choices and something that displays their personal touch. The French court did not expressly referred to Infopaq, but substantially applied its guidance correctly.

Secondly, the requirements for a successful parody defence. The French court referred to Deckmyn, but intended the requirement that evocation is such that the parodist’s work is noticeably different from the parodied work as akin to lack of a risk of confusion. This is incorrect. In his Opinion in Deckmyn [Katpost here], Advocate General Cruz Villalón had indeed proposed to have a no confusion requirement under Article 5(3)(k) of the InfoSoc Directive. However, the CJEU did not endorse this part of the Opinion. The requirement of evocation and being noticeably different is not about confusion: it’s about the own contribution of the parodist, which must be an expression of humour or mockery (not necessarily of the parodied work).

Thirdly, the fundamental rights angle. The French court was required to reason along the lines of Article 10 ECHR, probably because of the defensive strategy chosen by Koons and his co-defendants. However, it could and probably should have also considered the EU Charter of Fundamental Rights. This would have led the court to review the 2019 CJEU Grand Chamber rulings in Funke Medien and Spiegel Online and come to the conclusion that it is not possible to invoke directly the application of the Charter rights outside the system of EU copyright exceptions and limitations.