Saturday, 2 March 2019

Basquiat, Sakura, Verda

French television channel France 24 is reporting that Sakura art gallery in Paris has cancelled a Guillaume Verda exhibit after he was accused on social media of copying Jean-Michel Basquiat. The gallery did not cancel because of the alleged copying, but cited public safety concerns, stating that the artist had received threats on social media and by email.

Guillaume Verda has since made his Instagram account private, and the Sakura gallery has taken off any references to the exhibition from its site and closed the exhibition.

Is it copyright infringement?

Article L.122-4 of the French Intellectual Property Code states that “Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever.” Several tweets presented Verda’s works next to Basquiat’s. Copying or inspiration?

When assessing whether a particular work is infringing, courts first check if the work which was allegedly copied is composed of new and original elements and then determine if these original elements have been reproduced by the second work.

Verda’s works seems to have been painted in a way which certainly brings the Basquiat in mind. So there are similarities.

Ideas are not protected by French law: les idées sont de libre parcours, ideas are free to be used. A work must be original to be protected. It could also be argued that both Basquiat and Verda were inspired by ancient African art which is now in the public domain, and that the similarities are based on elements which are not original.

But if the similarities are on original elements of the first work, there is infringement.

If the similarities are obvious, bad faith is assumed, and then it is the Defendant who must prove he was in good faith. In this particular case, Verda did not seem to have hidden that Basquiat was a source of inspiration, as he referenced him in hashtags. So, he cannot claim that he did not know his works, and that the similarities are fortuitous, that this is a “rencontre fortuite,” which happens when two artists are creating a similar work without knowing each other. It may happen, but it is quite rare.

It is only after having assessed the similarities between the two works that the courts assess their differences. Here would lie Verda’s defense, proving the differences between the works.

It should be noted that copyright infringement and plagiarism do not have the same meaning under French law. While the first is a crime, the second, le plagiat, is a tort. The author of a work can decide not to sue for copyright infringement, but for plagiat, in a civil court, which will then assess whether the alleged plagiarism constitutes unfair competition and parasitism.  

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