At what point does artistic appropriation become copyright infringement? A Jeff Koons sculpture has reopened the 50-year-old debate.
According to the AFP, a French adman has accused Koons of ripping off an advertisement he created in 1985 for the French clothing company Naf Naf. Franck Davidovici’s original ad was titled “Fait d’Hiver.” It featured a brunette model lying face-up in snow as a piglet wearing a St. Bernard neck barrel sniffs at her tousled hair. If it sounds familiar, it’s because it looks remarkably like Koon’s porcelain sculpture also titled “Fait d’Hiver” (1988) and currently on view at his Centre Pompidou retrospective.
Koons added a few touches that make the scene undeniably Koons-esque. For one, the woman lies in sand and looks to be wearing goggles on her head. It’s summertime and much too hot for clothing, as evidenced by the chest-exposing netting she has opted for instead. The pig also wears a festive floral wreath and is accompanied by a conspicuous penguin sidekick, who looks fairly uncomfortable with whatever exactly is going on. Koons has previously claimed he based the woman on porn actress Ilona Staller.
An anonymous source told the AFP that a bailiff visited the French museum last week to photograph the artwork. Davidovici’s lawyer Jean Aittouares also alluded to some “legal action” in the works.
It wouldn’t be the first time Koons has been accused of plagiarism for an artwork in his Banality series. In 1989, photographer Art Rogers sued Koons for stealing a greeting card image he took of a couple holding a row of puppies and using it in his sculpture “String of Puppies.” Koons was also sued by United Features Syndicate after he used the likeness of Odie from Garfield in the sculpture “Wild Boy and Puppy.” Both times he claimed fair use by parody and lost. In 2006, he was more successful after fashion photographer Andrea Blanch sued him for using an image titled “Silk Sandals by Gucci,” published in an August 2000 issue of Allure. The judge agreed with Koon’s lawyer that Blanch didn’t have the image copyright to the Gucci sandals, and that without them the photograph would be merely a nondescript picture of someone’s feet.
While those averse to Koons might feel a little schadenfreude over his latest misfortune (or may simply feel he’s getting his due), it’s worth remembering that other artists have also faced legal distress over similar appropriations. Andy Warhol was sued by photographer Patricia Caulfield after he plastered silkscreen reproductions of a flower photograph she took on the walls of the Leo Castelli in 1964. More recently, Damien Hirst, Shepherd Fairey, and Richard Prince have faced copyright suits.
The Prince case (which Hyperallergic reported on extensively) illustrated how divisive the subject can be. In 2008, the artist was sued by Patrick Cariou for using 40 images from his book Yes Rasta, a compilation of photographs of Rastafarians that took Cariou six years to complete. Prince ripped 35 images out of the book and drew on top of them to create his Canal Zone series. When Cariou sued, Prince argued that his appropriation fell under the “fair use” category of the Copyright Act. It stipulates that works can be used in certain situations as long as it’s “transformative.” The court didn’t agree that Prince’s use of Cariou’s images were transformative, and they ruled against him. When Prince appealed, the appeals court ruled in his favor. “Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians in their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative,” they concluded.
Even Koons himself doesn’t seem to know what he thinks. As Vocativ pointed out, he sued a San Francisco gallery and store in 2011 for selling balloon-dog book-ends, though he dropped the suit after defense lawyer Jedediah Wakefield filed a biting legal complaint. “As virtually any clown can attest, no one owns the idea of making a balloon dog,” he wrote, “and the shape created by twisting a balloon into a dog-like form is part of the public domain.”