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Appropriation is increasingly becoming a legal matter rather than an artistic one, in large part because Jeff Koons keeps finding himself as the subject of plagiarism lawsuits.
On Thursday, a Parisian court ordered Koons, alongside his personal company, the Pompidou Centre, and a book publisher, to jointly pay nearly $170,000 for breach of copyright and damages. The money will go to Franck Davidovici, the creator of a 1985 advertisement for the clothing company Naf Naf. The ad shares its name — and a multitude of similarities — with Koon’s 1988 statue, “Fait d’hiver.” The aggrieved party had originally asked for around $352,000 in damages.
Although the sculpture has been kicking around for the last 30 years, Davidovici only noticed the piece’s striking resemblance to his own work in a catalogue for the Centre Pompidou’s 2014 Koons retrospective. He sued for copyright infringement in January 2015 and even tried to have the work seized. Four years later, he won his case before France’s legal system.
Ironically, Koons was conspicuously absent from the opening of his Pompidou retrospective four years ago because he was battling yet another accusation of copyright infringement. This one came from the widow of photographer Jean-François Bauret whose work prompted the American fabricato’s sculpture “Naked” (1988). In 2017, he was found guilty of that plagiarism charge and was ordered to pay nearly $42,000 in damages alongside the Pompidou.
Fait d’hiver : l’œuvre de Jeff #Koons est jugée contrefaisante de la publicité #NafNaf. Le Tribunal écarte l’argument de la liberté d’expression artistique considérant que Koons avait manifestement cherché à faire « l’économie d’un travail créatif ». TGI Paris 081118 pic.twitter.com/t5vvSbkH1c
— Ox avocats (@Oxavocats) November 8, 2018
The recent court judgement against Koons rejected his freedom of artistic expression defense, which stated that the work should count as a parody. The artist implemented a variety of differences from Davidocivi’s original ad. His “Fait d’hiver” has a woman with sunglasses on her forehead and features two penguins. In Koons’ sculpture, the woman wears a see-through fishnet shirt while in the ad, she is more sensibly dressed for winter in a jacket and furs. The artist’s pig also wears a wreath of flowers whereas the admen’s pig has none.
But the court ruling also notes the “very recognizable staging” that ties the two objects together. The presence and positioning of the pig and woman together are an obvious parallel, but Koons also replicates exact details, like a strand of hair that falls onto the woman’s left cheek.
From his Banality series alone, Koons has incurred a total of five copyright infringement lawsuits. “Fait d’hiver” is just the latest work in the series to face backlash. Still, one edition of the sculpture sold for $4.3 million at Christie’s in 2007. It is now in the collection of the Prada Foundation.
On that note, some have observed that Koons’ $170,000 fine is a paltry sum compared to the multimillion-dollar estimated value of the sculpture.
Sam P. Israel is a New York attorney specializing in intellectual property law. He tells Hyperallergic that Koons would have incurred far steeper fines if the case was litigated in the United States. “Jeff Koons, who does make art derivative of existing cultural images as a practice, should recognize his responsibility to those who create images for profit,” he said. “If the matter was pursued on US soil, the price tag for the infringement would have been considerably higher and reflect the huge sums Mr. Koons has and will continue to reap from the work.”
Davidovici’s lawyer, Jeff Koons’s studio, and the Pompidou Centre have not yet released official statements on the ruling yet.