THE FAIT D’HIVER AFFAIRE: JAFF KOONS FOUND GUILTY OF PLAGIARISM (AGAIN)
With its decision of 23 February 2021, the Cour d’Appel de Paris (CA Paris, 5, 1, 23 February 2021, no 19/09059) confirmed the first instance judgment issued in 2018 and condemned the famous appropriationist artist Jeff Koons for plagiarism: the work “Fait d’hiver” of 1988 was found to infringe copyright in an advertisement of 1985.
Among the numerous court cases involving Jeff Koons, the controversial American artist who has made the appropriation and reinterpretation of other people’s creations his unmistakable stylistic hallmark, the “Fait d’hiver” affair is an interesting one. In a 2018 decision, the Tribunal de Grand Instance of Paris had already found Koons’ porcelain statue, depicting a woman lying in the snow and rescued by a pig, to infringe copyright in an advertising campaign designed by Franck Davidovici in 1985 for the clothing brand “Naf Naf”.
Davidovici’s Fait d’Hiver
Koons’ Fait d’Hiver
In reaching its decision, the Court of First Instance adopted a subjective conception of originality, which was assessed not on the basis of the nature and result of Jeff Koons’s appropriation, but rather in relation to the work subject to that appropriation. Thus, by assessing the pre-existing work as unquestionably original and by pointing out, by means of a comparison of the works, that in his creations the American artist had slavishly taken over the characteristic elements of Franck Davidovici’s work, the judge applied the general rule according to which the reproduction of original elements of other people’s works without having first obtained the consent of the authors constitutes an infringement. On the basis of a systematic interpretation of the requirements of the law and of the case law, the defence’s objection of parody was also rejected by the TGI of Paris: the judge observed that, in addition to the lack of any intention on the part of the American artist to create a comic effect by means of the work, instead of which it was possible to detect the artist’s intention to make a criticism or a broader reflection, there was also the problem of the popularity of the parodied work. According to the Paris court, the lack of notoriety of Davidovici’s creation could only lead to confusion among the public between the parody and the parodied work.
The decision of the Cour d’Appel de Paris and the Jeff Koons judgment
Jeff Koons’ appeal against the first instance ruling did not have the desired effect. The defence’s attempt to exalt, even in this case, the principle of freedom of expression and the existence of an ideological détournement – a change of meaning between the original creation and the subsequent one – as characteristic features of the poetics of Appropriation Art and fundamental elements of the autonomy and originality of the appropriated work, was of no use. In fact, while not denying the existence of «an inspiration» to the advertisement designed by Davidovici, Koons’ defence reiterated that the porcelain version of “Fait d’hiver” was «a work of art in its own right, bearing the imprint of the personality of its author and an artistic message of is his own». However, the Court of Appeal, essentially confirming what had already been observed by the TGI at first instance and again rejecting the exception of parody due to the absence of the requirements of the law, noted instead that «the work was not presented as a criticism, a caricature or as inspired by a previous work» and that in any case, «if there are differences, the similarities are predominant». With regard to freedom of expression, the Cour d’Appel considered that the restriction of the extent of this principle under Article 27 of the Universal Declaration of Human Rights was necessary and proportionate to Davidovici’s moral and material interests.
Together with the American artist, the Fondazione Prada and the Centre Pompidou, which exhibited “Fait d’hiver” in 2014, were also charged with fines. They will have to pay 190,000 euros to Frank Davidovici for the infringing work, as well as 14,000 euros for having reproduced its image on the website www.jeffkoons.com. A similar sentence was imposed on the Flammarion publishing group, which had sold the catalogue containing the image of the plagiarised work.
It remains to be seen whether the conviction by the Cour d’Appel will put a definitive end to this legal affair, or whether the American artist will appeal to the Supreme Court.