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. 

Background 

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. 

Defences 

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. 

Parody 

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

Comment 

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

Jeff Koons Parody Defense Fails in French Copyright Infringement Case

On March 9, 2017, the Tribunal de Grande Instance de Paris, the Paris trial Court found that Jeff Koons had infringed the copyright of French photographer Jean-François Bauret, as he had reproduced, without authorization, one of Bauret’s photographs to create his Naked sculpture.

Jean-François Bauret took in 1970 a black and white picture of two naked children, a boy and a girl. The photograph, Enfants (Children), was reproduced in 1975 on a postcard, and also published in 1984 in a book, both with the authorization of the author, now deceased.

Bauret’s heirs discovered in 2014, by chance, that Jeff Koons had created in 1988 a china sculpture resembling Enfants, Naked, which is part of Koon’s Banality series. The heirs sent a cease and desist letter to Koons, demanding that Naked be retired from the Jeff Koons retrospective at the Pompidou Center in Paris, presented to the public in 2014-2015. The sculpture was finally not shown there, because it had been, according to Koons, damaged when shipped to Paris.

The heirs then sued Jeff Koons and the Pompidou Center for copyright infringement and damages. As Koons had created his work in the U.S., the French court declared having no jurisdiction over the alleged copying, only jurisdiction over the representation of Naked in France. The work has never been shown in France, but was included in the catalog and promotional items of the retrospective. Let’s note that Koons had to withdraw another Banality sculpture from the same retrospective, as it allegedly infringed the copyright of another French photographer (see here). 

Is Enfants an original work of art, protected by French copyright?

Koons and the Pompidou Center argued in defense that Enfants was not original enough to be protected by French copyright, the droit d’auteur. The Court did not agree, citing the Court of Justice of the European Union (CJEU) Eva-Maria Painer. v. Standard Verlags GmbH et al. case [see here for Eleonora’s comment on the case], where the CJEU held that a photograph can be protected by copyright, under Article 6 of Directive 93/98, if the photograph is an intellectual creation of the author which reflects her personality. This must be verified by the national Courts, which the Paris Court undertook to do.

The Paris Court  explained that “[t]he author must be able to explain the elements which make it possible to understand his creative effort and what he claims as the imprint he has placed on this work and which stems from his personality.”

The Court noted that Mr. Bauret had built a whole corpus of work around human nudes, presented not in a sexual way, but instead as a way to live au naturel. He wanted to show in Enfants “a message of innocence and purity, without sappiness.” Mr. Bauret directed the pose taken by the two children, and the photo was not the product of a “shooting session of children playing freely.”

The Court concluded that in the photograph “an atmosphere of tenderness and purity reveals the imprint of the personality of the author.”

Is Naked an unauthorized reproduction of Enfants?

The Paris Court then compared the two works, Naked and Enfants. It found that “[t]he pose of the children is visually recognizable in the image of the Naked sculpture and the children are identifiable with the models chosen by Jean-François Bauret whose morphology is reproduced.” The Court noted that Jeff Koons had placed the children on a colorful heart-shaped pedestal, surrounded by multicolor flowers, and that, unlike in the original picture, the boy was giving flowers to the girl. Also, the tridimensional sculpture allow the viewer to turn around the work.

However, these differences “do not prevent recognition and identification of the models and pose chosen by the photographer which are essential protected elements of the photography.” The Court found Naked to be a composite new work, which incorporated the Enfants pre-existing work. As Koons had not sought Bauret’s permission to use Enfants, the Paris Court concluded that Naked was an illegal reproduction.

Is Naked a parody of Enfants?

Jeff Koons asserted a parody defense. Article L. 122-5 of the French Intellectual Property Code provides that the author cannot forbid certain uses of his work, parody amongst them. The Paris Court cited the CJEU Deckmyn v. Vandersteen case, where the CJEU explained that a parody must “evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery” [see here for Eleonora’s comment on the case].

The Paris Court did not find that Naked was a parody, noting that “it is the first time that [Koons] evokes the existence of this supposedly parodied work which he never quoted in his artistic discourse to illustrate his inspiration and he maintains that he is very distanced from it.”

Does the Paris Court interpret Deckmyn correctly? Does a parody necessarily mock the protected work which it evokes? Or can the parody evoke the protected work as a symbol of something that the parodist wants to make fun of? This is what the CJEU held in Deckmyn:

“[T]he essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.” (My emphasis).

There is no requirement that parody directs its sting at the original work…

Naked is part of a series of sculptures named Banality. The Paris Court described the series as “a new approach of “ready-made” which reveals in a mixture of pop art and kitsch, objects related to popular culture.” The Court thus described Koons’ creative process as taking an object related to popular culture, mixing it with pop art to make its kitsch pop up. The result is a ready-made piece of art.

One can argue that such definition of Koons’ series contradicts the very conclusion of the Court about the lack of parody, even if one interprets Deckmyn as meaning that a work of art does have to parody the work it is evoking to benefit from the parody exception. The Court did not specify what Koons “reveals” (dévoile) in his series, but one can suppose the court meant to say he reveals the banality behind pop culture.

In our case, Naked brings to mind the Hummel figurines, many of which have a brother and a sister as theme (see here for example). Kitsch indeed. Koons seems to comment on it by inserting flowers, hearts, and pedestal, as banal props of cuteness. 

Anyway, this case shows how courts view parody differently from both sides of the Atlantic.  In Cariou v. Prince, the Second Circuit found that it was not necessary that Richard Prince had commented on the work of Patrick Cariou for the fair use defense to be successful. It is true that the fair use defense has a much broader scope than the EU parody defense.

Jeff Koons Banality series has also provided Rogers v. Koons to U.S. copyright case law, where the Second Circuit found that Jeff Koons had infringed the copyright of the author of a photograph representing a couple holding puppies, which Koons reproduced in a sculpture. Koons had unsuccessfully asserted fair use as a defense, but, in light of Cariou, the Second Circuit would likely now find it is fair use. Ready Made artists, Appropriation artists, keep creating! Copyright law needs you. 

Image of Centre Pompidou is courtesy of Flickr user cwywy007 under a CC BY-NC-ND 2.0 license.

Image of Jeff Koons program is courtesy of Flickr user Jürgen Fenn under a CC BY-ND 2.0 license.

The CopyKat's Christmas baubles

The attorneys representing Sirius XM Radio Inc. in the potentially industry-shaking copyright litigation about pre-1972 sound recordings, O'Melveny & Myers, have been rapped by District Judge Colleen McMahon in Manhattan who has now ruled that she hadn't erred when she failed to apply the 1940 case of RCA Manufacturing v. Whiteman in concluding last month that Sirius must pay royalties to broadcast pre-1972 records - telling the lawyers that their newly-cited precedent had been overruled 60 years ago.  "The only clear error in this case is O'Melveny's" Judge Colleen McMahon wrote - telling the  lawfirm that they had "deliberately missing the point" and "doing nothing but raise red herrings" since making its initial appearance in the case in November. The ruling stems from a lawsuit in which the two founding members of the 1960s rock band The Turtles allege that Sirius infringed on the group's rights under state law by playing its tracks without permission. Federal copyright law doesn't govern sound recordings made prior to 1972, and Sirius has argued in its defence that New York law also doesn't cover performance rights for pre-1972 sound recordings.

The IPKat reports that the Centre Pompidou in Paris is now showing a retrospective of Jeff Koons’ work. Among them is  Fait d’Hiver, a porcelain sculpture representing a pig looking at the torso of a woman lying in the snow (above left). The woman is rather scantily dressed as her bare chest is visible through her fishnet top. Her body has been cut below her breasts, along with her left hand, which lies separated from her body on her left side. The pig, a rather plump, but very clean and pink specimen, has two penguins as companions. He carries around his neck a garland of flowers and a barrel, such as those used by Saint Bernard dogs to rescue people lost in the snow. What of it you ask? Well Fait d’Hiver is also the title of the earlier 1985 Naf Naf advert (above right), which also represents a woman lying in the snow, eyes wide open. One cannot see her body below her torso, and only her right hand and arm are seen in the ad. She is dressed in a Naf Naf ski jacket, popular during the cold 1985 winter. A piglet is seen on the right of the ad with a Saint Bernard barrel around its neck, and the ad bears the Naf Naf slogan Le Grand Méchant Look (The Big Bad Look). A claim is expected from adman Frank Davidovici - and the Marie-Andree muses on possible defences Koons might have - fair use maybe? parody? Koons has been in the courts before and has a mixed history with litigation, so we shall see!

Just drifting into designs ..... Rob Law, owner of luggage company Magmatic, which produces kids’ travel accessories brand Trunki, believes he has secured a victory for British design businesses by winning the right to fight the ruling made by the UK Court of Appeal that PMS International's discounted - and allegedly copycat  - Kiddee Cases - did not infringe Truki's designs - overturning Mr Justice Arnold (Magmatic Ltd v PMS International Ltd [2014] EWCA Civ 181). The Supreme Court awaits. 

Canada's new ISP notification system - the 'Notice and Notice' system is preparing to make it's entry on January 2nd 2015 with TechDirt opining "like the country's copyright reform efforts, it tries to actually incorporate the concerns of all parties involved (gasp, again). The system is first and foremost designed to raise awareness of copyright violations. That really doesn't take much -- Canadian ISPs state that simply notifying the user (especially the user's parent) puts a big dent in infringement right out of the gate. More specifically, ISPs claim 89% of notice recipients don't infringe after the second notice". Whether a 'notice and notice' system works better than a 'notice and takedown' system works for content owners remains to be seen, and the new system is not without critics.

Our 2014 review of THE COPYRIGHT YEAR is nearly done and we are just putting the finishing touches to that. Expect a blog post here soon!

And finally - if you get bored over the festive break - why not try The EFF's festive crossword puzzle, packed full of all sorts of questions about IP and copyright news from 2014 - it's a good one! Thereis an online interactive version here http://thedod.github.io/eff-crossword-2014/ or try http://gizmodo.com/heres-a-festive-crossword-puzzle-about-2014s-ip-and-cop-1674433850

HAPPY CHRISTMAS TO THOSE OF YOU WHO
CELEBRATE THIS DAY