THE FAIT D’HIVER AFFAIRE: JAFF KOONS FOUND GUILTY OF PLAGIARISM (AGAIN)

16/03/2021

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.

 

The case
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.

Federica Gattillo


STREET ART AND LAW: THE COUNCIL OF STATE SUSPENDS THE ORDER OF REMOVAL OF A WALL PAINTING UNTIL A NEW ASSESSMENT OF ITS LANDSCAPE COMPATIBILITY IS MADE

02/03/2021

With judgment no. 7872 of December 10, 2020, the Council of State, partially overturning the judgement no. 46 of March 20, 2018 rendered by the Piedmont Regional Administrative Court, provisionally suspended the execution of the order of demolition of a work of street art issued by the Municipality of Avigliana, having the latter denied the request for assessment of the mural’s landscape compatibility without a real assessment of merit and on the basis of purely formalistic arguments.

 

The case originates from the realization of a wall painting by a famous Spanish street artist on the wall of a building located in an area subject to environmental and landscape restrictions according to the provisions of the Code of Cultural Heritage and Landscape. Following the demolition order issued by the competent local administration, the owner of the building interested by the mural requested, on the one hand, the declaration of the work’s historical and artistic interest and, on the other hand, the verification of its landscape compatibility. Both requests were rejected.

In this scenario, the claimant appealed to the Regional Administrative Court against the demolition order issued by the Municipality of Avigliano and the refusal to issue a declaration of landscape compatibility, but not against the second refusal relating to the declaration of historical and artistic interest of the mural. The Regional Administrative Court, with the above mentioned order, rejected both appeals. Hence the appeal to the Council of State.
The first three grounds of appeal, with which among other the application of art. 50 of the Cultural Heritage Code was requested, according to which the removal of frescoes and graffiti is prohibited without the prior authorization from the competent authorities, were rejected as the appellant’s argument, based on the alleged artistic value of the work in question, was irrelevant for the purposes of the procedure, “in which only the construction, urban planning and landscaping aspects of the work are taken into consideration”, as the appellant had not contested, as seen, the decision to deny the request to declare the mural of historical and artistic interest. This was held despite that the arguments put forward by the appellant regarding the historical and artistic interest of the work were considered by the Council of State as “suggestive”.

On the other hand, the fourth ground of appeal, regarding the denial of the request for landscape compatibility of the work, was upheld. On this point, the Council of State shared the appellant’s claim that the Regional Administrative Court was wrong in not considering relevant the fact that the municipal administration, in denying the request of the interested party, had not previously involved the superintendence authority. On this point, the Council notes that pursuant to art. 146 of the Code of Cultural Heritage and Landscape “the Superintendence no longer exercises a review of mere legitimacy on the authorization act adopted by the Region or the sub-delegated entity […], but an assessment of ‘administrative merit’, an expression of the new powers of co-management of the landscape constraint”. The superintendence should have therefore been involved by the Municipality before issuing its decision, and this regardless of the presumed failure of the interested party to comply with the request for document integration made by the municipal administration which – incidentally – was also judged contrary to the principles of economy, effectiveness and collaboration of the public administration since the Municipality already had all the elements to make an assessment on the merit of the request.
On the basis of these considerations the Council of State, in upholding the appeal against the refusal to grant a declaration of landscape compatibility, ordered the authorities to carry out a new assessment of the compatibility of the mural with the constraints on the area where the work was made, after having consulted the Superintendence. Consequently, in application of art. 167 of the Cultural Heritage Code, in the event of a positive assessment of the landscape compatibility, the measure of restoration of the area – and therefore the demolition of the mural – will have to be replaced by the application of a fine. Until such reassessment, in any case, the demolition order must be considered suspended.

The judgment in question is of particular interest as it deals, albeit indirectly, with the increasingly topical issue of how to resolve the balance between various legally protected assets, i.e. the private rights of property and copyright (in whose scope of protection murals certainly fall) on the one hand and the public interest of environmental and landscape protection and the consequent legislation of the Code of Cultural Heritage and Landscape.
Giorgio Rapaccini


FINES FOR VIOLATION OF EU ANTITRUST RULES: VALVE, OWNER OF THE GAMING PLATFORM “STEAM” AND OTHER FIVE PUBLISHERS WERE FINED A TOTAL OF MORE THAN € 7 MILLION FOR GEOBLOCKING PRACTICES RESULTING IN MARKET PARTITIONING

08/02/2021

According to the European Commission, Valve and the game publishers Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax restricted cross-border sales of about 100 PC video games, thereby violating EU competition law. The agreement was designed to prevent consumers from playing games outside certain Member States. Therefore, the parties partitioned the European market. The practices took place in nine different EU-Member States between March 2007 and November 2018.

 

Steam is an online platform, accessible worldwide, that offers video games for download or for playing in streaming. Also, games bought via traditional channels or electronically from third parties may be played via Steam. Users obtain specific activation keys enabling them to activate and play games on the platform. Said activation keys are included in the video games sold by the publishers. The platform Steam includes a territory control function: during the activation process the user’s geographic location is recognized. As a result, a “geo-blocking” is possible because of the combination of activation keys and the territory control function.
After almost four years of investigation, the European Commission (“Commission”) has ascertaining, with regard to the relationship between Valve and the five abovementioned publishers: “Bilateral agreements and/or concerted practices … implemented by means of geo-blocked Steam activation keys which prevented the activation of certain of these publishers’ PC video games outside Czechia, Poland, Hungary, Romania, Slovakia, Estonia, Latvia and Lithuania, in response to unsolicited consumer requests (so-called “passive sales”). These lasted between one and five years and were implemented, depending on the cases, between September 2010 and October 2015.”
Furthermore, with regard to the PC video game publishers Bandai, Focus Home, Koch Media and ZeniMax and some of their respective PC video games distributors in the EEA (other than Valve) the Commission ascertained: “Geo-blocking practices in the form of licensing and distribution agreements … containing clauses which restricted cross-border (passive) sales of the affected PC video games within the EEA, including the above-mentioned Central and Eastern European countries. These lasted generally longer, i.e. between three and 11 years and were implemented, depending on each bilateral relationship, between March 2007 and November 2018”.
While the game developers Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax choose to cooperate, Valve, the owner of the platform Steam, according to the reasoning of the European Commission, did not so.
The violations
The legal background of the decision is reported to be twofold: it both mentions unjustified geo-blocking and vertical sales restrictions. EU – “Geo-blocking” Regulation n. 2018/302 aims at preventing discriminatory trade practices “based on customers’ nationality, place of residence of establishment, including unjustified geo-blocking, in cross-border transactions between a trader and a customer relating to the sales of goods and the provision of services within the Union.” In particular, a trader shall not, through the use of technological measures or otherwise, “block or limit a customer’s access to the trader’s online interface for reasons related to the customer’s nationality, place of residence or place of establishment”. However, the Regulation entered into force on December 3, 2018 only and thus after the end of the ascertained practices.
While the press-release of the European Commission repeatedly mentions the aspect of geo-blocking, the legal reasoning is rather to be found in art. 101 TFEU prohibiting the sharing of markets, being incompatible with the idea of an internal market: agreements between suppliers and distributors that limit the territory in which, or the customers to whom, the goods or services may be sold are not allowed.
The fines
The European Commission has issued reduced fines against the publishers acknowledging the collaboration during the investigations. To the contrary, the fine issued against the platform owner Valve was not reduced: according to the European Commission, Valve did not sufficiently cooperate during the proceedings. Valve is reported to consider appealing the decision. In past, Valve argued that it could not be considered as “games-distributor”. It would only provide a platform as a mediator between game providers and consumers. In any event, the Commission was not convinced: Valve was considered to plays a crucial role in a practices leading to market sharing.

Conclusion
The case exemplifies the close connection between aspects of geo-blocking and market partitioning. According to the regulation on geo – blocking, the EU member States shall ensure “effective, proportionate and dissuasive” measures against geo-blocking. However, as it is shown here, where geo – blocking results in market sharing, also consumers may claim damages. As the European Commission underlines in its press release: “any person or company affected by anti-competitive behaviour as described in this case may bring the matter before the courts of the Member States and seek damages. The case law of the Court and Council Regulation 1/2003 both confirm that in cases before national courts, a Commission decision constitutes binding proof that the behaviour took place and was illegal.”

Tankred Thiem


CJEU: REGISTRATION PROTECTS NOT ONLY THE DESIGNATION OF ORIGIN, BUT ALSO THE SHAPE AND APPEARANCE OF THE PDO PRODUCT

26/01/2021

In its judgment of 17 December 2020, issued at the end of case C-490/19 (“Syndicat interprofessionnel de défense du fromage Morbier v. Société Fromagère du Livradois SAS”), the European Union Court of Justice was called upon to rule on the protection of the Protected Designation of Origin (PDO), clarifying that under EU law it is possible to prohibit also the imitation of the shape and appearance of a PDO product, if the imitated elements may cause confusion to the consumer.

 

IThe case
“Morbier” is a cheese produced in the Jura mountains (France) which has been registered as a PDO under European legislation since 22nd December 2000. Société Fromagère du Livradois (hereinafter ‘SFL’) is not located in the geographical area designated for the name “Morbier”, which is why it produces cheese under the different name “Montboissié du Haut Livradois”. Although the two cheeses have different names, they both share the same aesthetic feature, namely a horizontal black stripe encircling the whole of the cheese, which is explicitly identified in the description of the PDO “Morbier” product.

The dispute in question stems from the proceedings brought in 2013 by the Syndicat interprofessionel de défense du fromage Morbier (Morbier Cheese Protection Consortium) against SFL, seeking an order that SFL cease all direct or indirect commercial use of the name ‘Morbier’ PDO for products not protected by it, all misuse of the name, any usurpation, imitation or evocation of the PDO, any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product likely to mislead the consumer as to the true origin of the product, any other practice likely to mislead the consumer as to the true origin of the product, and in particular any use of a black stripe separating two parts of the cheese. The application for an injunction thus formulated was, however, not granted at first instance. In particular, in a decision of 2017, the Cour d’Appel de Paris stated that PDO registration was not intended to protect the appearance or characteristics of a product, but was limited to protecting its name, and that the manufacture of different products using the same working techniques was not per se prohibited.
The consortium, after its claims for protection were not upheld, appealed the decision of the Court of Appeal to the French Court of Cassation. On this occasion, the Cassation, by way of a preliminary reference, asked the European Union Court of Justice for clarification not only on the rules concerning the use by third parties of a registered name, but also on the possibility of prohibiting, on the basis of EU legislation, the reproduction of shapes and characteristics of a product with a designation of origin.

The CJEU decision
The Court of Justice is thus called upon to rule on this practice and, in particular, to clarify whether the reproduction of the shapes and characteristics of a product bearing the PDO mark is likely to mislead consumers as to the real origin of the product. The CJEU first of all clarifies the interpretation of both Article 13(1) of Council Regulation No 510/2006 of 20 March 2006, in force at the time of the facts, and Article 13(1) of Regulation No 1151/2012 of the European Parliament and of the Council, which replaced the first regulation on quality policy for agricultural products and foodstuffs, stating that “registered names shall be protected against […] any other practice liable to mislead the consumer as to the true origin of the products”. According to the Court, both rules must be interpreted broadly so as not only to prohibit the use by third parties of the registered name, but also to preclude them from reproducing the characteristic shape or appearance of the PDO product, where such a practice is liable to mislead the consumer into believing that the product in question is covered by the registered name. Therefore, although the protection provided for by Regulations Nos 510/2006 and 1151/2012 relates expressly to the registered name and not to the product to be protected and, more specifically, to its shape or appearance, PDOs are protected precisely because of those particular characteristics which distinguish the product. For this reason, according to the CJEU, it is not possible to exclude a priori that the reproduction of such characteristics attributable to a product covered by a registered name, without that name appearing on the product, may fall within the scope of the rules in question. Lastly, the judgment states that it is necessary to ascertain on a case-by-case basis whether that reproduction is likely to mislead the European consumer – who tends to be well-informed and circumspect –, having regard not only to the relevance and distinctive character of the elements being imitated, but also to all the factors in the case (i.e. the manner in which the product is presented to the public and marketed) which are likely to mislead the consumer.

Federica Gattillo