Thursday 26 December 2019

Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences
By Eleonora Rosati writing for the IPKat and first published on the IPKat here 
Last week, the Paris Court Appeal ruled (decision No 152/2019) in favour of the estate of late French photographer Jean-François Bauret in proceedings brought against, inter alia, US artist Jeff Koons (an artist who, as readers will know, has been sued a few times for copyright infringement: see, eg, here, here, and here). 
The action related to the unauthorized reproduction of a photograph (Bauret’s ‘Enfants’, shown below on the left hand side) in a sculpture (Koons's ‘Naked’, below on the right hand side). 
'Enfants' (L) and 'Naked' (R)
The defendants had advanced a number of arguments, including that: 
- ‘Enfants’ is not original; 
- even if it was, ‘Naked’, would not incorporate any original elements thereof; 
- even if prima facie infringement was established, freedom of the arts and parody would prevail over copyright.
The court rejected them all. Let’s see what happened in greater detail. 
In 1970, Bauret realized a black-and-white photograph titled ‘Enfants’. No print of the photograph was sold, but in 1975 the photographer authorized the making of postcards carrying the image of the work. 
In 2014, the Bauret estate found out that Jeff Koons had realized a porcelain sculpture, ‘Naked’, which was similar to the ‘Enfants’ photograph. Koons’s work had been made in 1988 in 4 copies as part of the Banality series, a readymade collection of artworks that contains a mix of pop art and kitsch. 
The sculpture was never exhibited in France, though in 2015 it should have been on display in an exhibition at the Centre Pompidou in Paris. 
The Bauret estate sent a warning letter to both Koons and the museum. For reasons linked to damage during transportation, ‘Naked’ was not included in the exhibition in the end. The museum subsequently also removed the image of the sculpture from the exhibition catalogue. 
A lawsuit followed and, in 2017, the TGI Paris partly ruled in favour of the photographer’s estate. Both parties appealed. 
Aside from issues concerning the personal liability of Koons, the judgment is particularly interesting as far as substantive issues of copyright subsistence and infringement are concerned. 
Originality of ‘Enfants’
As regards the protectability of the photograph, the defendants had submitted that Bauret had failed to express his own personal touch. The choices made were not sufficient for the work to be considered his own intellectual creation, in that the photograph represented a ‘spontaneous pose’ assumed by the two children and the estate had failed to demonstrated where the originality of such creation would lie. 
The court disagreed, and held that Bauret’s work revealed a new concept of nude, which is raw and devoid of any sexual connotation, and such as to disclose the personality of the author. Among other things, the particular use of the light was meant to confer some ‘sculptural’ character to the photograph and the overall composition (including the pose and expression of the children) served to add a ‘geometric’ dimension to the work. According to the court, the latter in particular served to dispel any idea that the pose of the children would be spontaneous: rather, they had been directed by the photographer to assume a certain pose and expression. 
In light of all this, like at first instance, the photograph was found to be original and protectable. 
Prima facie infringement
The claimants pointed to the several similarities between the photograph and challenged the relevance of the argument, made by the defendants, that the different character (real vs fictional) and message (children’s innocence vs Adam & Eve) conveyed by, respectively, the photograph and the sculpture would exclude the recognizability of the former in the latter (it should be noted, however, that Koons never denied that he had had access to the photograph). 
The defendants submitted that the sculpture had not reproduced anything that would confer originality to the photograph, and highlighted the differences between these two, including the colour, dimensions (a 2D photo vs a 3D sculpture) and size ('Naked''s height is 1m), as well as other differences (hair colour, navel, children’s gaze, position of the hands, background, elements in the composition). 
The court disagreed, and found that the sculpture had actually incorporated the “essential features” of the photograph, which constituted its original character. 

Copyright and freedom of expression 
The court also considered an important point: to what extent can freedom of expression – including freedom of artistic expression – restrict or even trump copyright protection? 
To answer this, the court followed a similar approach to the one indicated (correctly) by the Court of Justice of the European Union (CJEU) in its recent Grand Chamber rulings in Funke Medien, Spiegel Online, and Pelham [Katposts here, here,  and here] notably that only available copyright exceptions and limitations can be relied upon in an infringement action, and that it is not possible to invoke directly fundamental rights and freedoms or a ‘fair use’ of a work to trump the application of copyright's exclusive rights
In this sense, like the CJEU, the Paris court confirmed that the balance between different rights and freedoms is internal to the copyright system, and has been undertaken by legislature when envisaging available copyright exceptions and limitations. 
In all this, the court also considered that the unlicensed use of the photograph by Koons was not “necessary” for the exercise of his own freedom of expression. 
The defendant had also raised an argument that the use at issue could qualify as parody. The court referred to the 2014 CJEU Deckmyn decision [Katposts here] and the requirements that, for a work to be considered a parody, first, it must evoke an existing work while being noticeably different from it and, second, it must constitute an expression of humour or mockery. 
The court considered that neither requirement would be fulfilled in the case at issue. 
'Chats', by Merpel
The decision appears correct from a substantial standpoint and is also compliant with case law of the CJEU. The court correctly applied the Painer test (though it did not expressly refer to that decision) for determining originality of a photograph, by considering the ‘free and creative choices’ that the photographer had made in the pre-shooting phase, when taking the photograph, and in the post-production phase.
It also appropriately applied (again, without mentioning them expressly), the CJEU holdings in Funke Medien, Spiegel Online, and Pelham. 
In all this, the most interesting aspect of the decision probably relates to the application of the CJEU Deckmyn decision. As mentioned, one of the characteristics of a parody is that it must constitute an expression of humour or mockery. The CJEU did not clarify whether this requirement is fulfilled when an alleged parody pursues a humorous intent, or whether it is also required that it achieves it (as the Advocate General had suggested in his Opinion). 
If the test was ‘intent’, then the exception under Article 5(3)(k) of the InfoSoc Directive would be broader than if a humorous ‘effect’ was also required. Above all, requiring just intent would be better compliant with the need to safeguard parody as a means to exercise freedom of expression. As I discus at greater length here, the difficulties that might arise should a humorous effect be required, lead to the conclusion the correct test under Deckmyn is that of a humorous ‘intent’. 
In its decision the Paris Court of Appeal suggested that both intent and effect might fall within the concept of ‘expression of humour or mockery’ when it stated that: “La parodie doit aussi présenter un caractère humoristique, faire oeuvre de raillerie ou provoquer le rire” (“The parody must also have a humorous character, make fun of or provoke laughter”). So, an acceptable parody might perhaps be both one that makes fun without necessarily provoking laughter and one that provokes laughter without necessarily making fun. This might be an interesting take worth elaborating further in future case law. In all this, however, neither was the case of ‘Naked’.
The IPKat thanked Stéphanie Legrand, who represented the Bauret estate in the proceedings, for kindly providing a copy of the decision of the Paris Court of Appeal

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