When is an artist entitled to refuse attribution of an artwork? Italian Supreme Court provides (final) guidance in long-running dispute over Jeff Koons’s The Serpents

The Serpents by Jeff Koons ...

Jeff Koons is one of the best-known contemporary artists. As IPKat readers are surely aware, his fame extends well beyond the art world, given that Koons has contributed as litigant to some of the most interesting copyright case law around the world [see, eg, IPKat coverage here].

A few days ago, it was the turn of the Italian Supreme Court to rule (decision 23935/2023) in a case involving him and a copy of an artwork – specifically: a porcelain sculpture titled The Serpents – that he has refused to acknowledge as authentic for over 25 years, with the consequence of diminishing very substantially the economic value of the artefact.

The previous instalments of the dispute between Koons and an Italian collector have been covered by the art press quite extensively [see, eg, here and here], but here’s a recap.

Background

In 1988, the artefact at issue in the Italian litigation was shown at an exhibition in Cologne (Germany). There, it was presented as an original Koons artwork of which three copies exist. 

Subsequently, the sculpture was shipped to Italy and held at customs in Milan. As no one claimed the artefact for 2 years, the sculpture was eventually auctioned and acquired, first, by a company and, then, by the collector.

The collector subsequently contacted Koons several times (in 1997, 2007 and 2009) in order to obtain a declaration of authenticity from him and thus sell the artwork. All these attempts were made in vain.

In 2014, the collector received an offer to acquire the sculpture for EUR 1,6 million but the sale did not go through as the perspective buyer also contacted Koons’s entourage to ensure the authenticity of the artwork and received the response that the artefact is “an unsatisfactory prototype which should have been destroyed and is therefore not an authorized or authentic work by Jeff Koons”.

In 2016, litigation ensued before the Court of First Instance of Milan, with the collector seeking to obtain a declaration that the artefact in his possession was in fact authored by Jeff Koons. That court dismissed the action on procedural grounds. In 2021, the Court of Appeal of Milan sided with the collector and indicated that his artefact should be regarded as authored by Koons.

A final appeal to the Italian Supreme Court followed. It is worth recalling that this is not a court on the merits: its task is to ensure the correct interpretation and application of legislative provisions by lower courts.

Of all the grounds of appeal to the Supreme Court, the most intriguing one is that concerning the application of relevant provisions in the Italian Copyright Act concerning moral rights.

Moral rights under Italian law and the issue before the Supreme Court

Moral rights are not harmonized at the EU level. Insofar as international law is concerned, the relevant provision is that contained in Article 6bis of the Berne Convention. In turn, all this means that moral rights protection does vary significantly from country to country.

... The Kats ...

Italy is a dualist jurisdiction with a longstanding tradition of moral rights protection, in line with droit d’auteur systems.

In this specific case, the Italian Supreme Court was tasked with providing guidance on the moral rights of (1) attribution and (2) publication of a work. Specifically: was the Court of Appeal of Milan entitled to declare the collector’s artefact a work by Koons when in fact Koons did not want it to be attributed to him and consider the display of the work in Cologne akin to “publication” of the work?

The decision

Regarding the question of attribution, the Supreme Court considered that this would entail an assessment on the merits and be, therefore, precluded to that court. That said, the Supreme Court also observed that Koons acknowledged that the artefact indeed originated from him, even though as a prototype and not a finished artwork.

Under Italian law, the author has the exclusive right to publish their work and “first publication” means the first undertaking of an act of exploitation of said work. According to Koons, this would necessarily mean the sale of the work. The Supreme Court disagreed and found that the public display of a work may also amount to exploitation thereof. Actually, this would be the typical exploitation modality for a work like a sculpture. The public display would also be supported by a profit making intention, irrespective of whether a sale is concluded, as the goal is to promote an artist and their work.

The court also ruled out the applicability of other moral rights to the case at hand, including the rights of integrity and to withdraw the work from commerce.

... and Standing Male Nude
by Lucian Freud

In conclusion, the Supreme Court dismissed Koons’s appeal and upheld the decision of the lower court.

Comment

The Koons case is not an isolated instance of a top-selling artist that refuses to acknowledge an artwork as their own. One could for example think of The Man in the Black Cravat or Standing Male Nude, two paintings which Lucian Freud consistently denied being the author of. What makes however this case stand out is the fact that Koons did not deny that he was in fact the author of the artefact in question, but refused to acknowledge that as a finished artwork.

Overall, this recent Italian Supreme Court’s decision is important for two key reasons. The first is that it indicates how moral rights have the potential to be quite powerful weapons provided that the right circumstances arise (which was not the case here). The second is the correct confirmation – which is also in line with the case law of the Court of Justice of the European Union regarding the construction of the notion of profit-making intention and the scope of rights like the distribution one (think of cases like Labianca, commented here) – that the exploitation of a work starts well before its actual sale.

Insofar as the art market specifically is concerned, the decision is reassuring news for buyers, collectors and sellers alike when it comes to confirming (and maintaining) the authenticity and – with that – the value of artworks.