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Appropriation Art Takes Another Hit in European Courts

On 9 March 2017, a French High Court held that a 1988 sculpture by appropriation artist Jeff Koons, Naked, infringed on the copyright of the late photographer, Jean-Francois Bauret.  The claim was brought by Bauret’s widow, Claude Bauret-Allard, against Koons for copying her husband’s work and against the Centre Pompidou in Paris for using an image of the work in the advertising material for their Koons retrospective in 2014.

The court ordered Koons’s company and the Pompidou to each pay €20,000 to the heirs of the photographer for the infringement.  Koons was ordered to pay an additional €4,000, due to the reproduction of the sculpture on his website.  Considering that an edition of Naked yielded close to $10 million in a 2008 Sotheby’s sale, the damages awarded by the French court may seem low.  However, this can be attributed to the fact that Naked was not physically part of the exhibition at the Pompidou, and therefore no sculptural edition fell under the French court’s jurisdiction.  This case was limited to the reproduction of Naked in the Pompidou’s exhibition catalogue and on Koons’s website.

Bauret’s black and white photograph entitled Enfants depicts two nude children, a boy and a girl, holding hands, with their arms around one another.  Koons’s meter-long porcelain sculpture, Naked, also depicts two nude children standing next to each other, with strikingly similar features, hairstyle and positions as portrayed in Enfants.  There is some variation in Naked: Koons placed flowers all around the children’s feet, and showed the boy handing a small bouquet of flowers to the girl.

The French court did not find Koons’s Naked to be sufficiently transformative of Bauret’s Enfants, and held that Naked was easily recognizable as a derivative of Enfants.  The court acknowledged the need for balancing intellectual property rights with the freedom of expression, which it deemed to be equally important, but held that Koons had failed to justify his need to use the image without Bauret’s authorisation.

Koons, like the artist Richard Prince, has been sued for copyright infringement on multiple occasions.  Koons has prevailed in some instances (Blanch v Koons, 467 F.3d 244 (2d Cir. 2006)) and lost in others (Rogers v Koons, 960 F.2d 301 (2d Cir. 1992)).  The outcome of copyright infringement claims obviously depend on the individual works at issue, but the jurisdiction in which the infringement is tried is also relevant.  More specifically, the threshold for originality (i.e., whether a creation is original and warrants protection) in the context of copyright is slightly higher in Europe than it is in the United States.  The fair use defence in the U.S., for example, is an affirmative defence against a claim of copyright infringement pursuant to which any type of use can be deemed as fair use and not infringing, provided that the allegedly infringing work at issue meets a four-part test.[1]  By contrast, in Europe, the defences against a claim for copyright infringement are much narrower, where only prescribed types of uses can enjoy protections from claims of infringement.  Some argue that the U.S.’s broad fair use exception creates room for abuse where influential artists profit by and get away with “stealing” from smaller artists, while others argue that Europe’s narrow and prescriptive approach stifles creativity.  Had Bauret’s wife issued a claim of copyright infringement against Koons in the United States, the outcome of this case may have been different.

At present, an interesting case to monitor in the realm of copyright infringement and appropriation art in the United States is the ongoing litigation in New York federal courts, Graham v Prince et al, 1:15cv10160 (2015).  Photographer Donald Graham has sued artist Richard Prince for copyright infringement in relation to Prince’s use of a photograph of a Rastafarian taken by Graham in his “New Portrait” series that was exhibited by Gagosian Gallery.  The “New Portrait” series presented prints of other people’s Instagram posts, with comments and minimal alterations by Prince.  Prince made very minimal changes to Graham’s photograph before using it for his work, see images available here.  Provided parties do not settle, this case is likely to test whether minimal alterations to an original work by a secondary user would be sufficient to satisfy the four-part “fair use” test in the U.S. to successfully defend against a claim of copyright infringement.

By Azmina Jasani

Published 9 May 2017

[1] See, 17 U.S.C. § 107.  “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.”