News & Cues: Oops, he did it again – More legal drama in the arts scene, courtesy Koons’ latest copying claim

American artist, Jeff Koons has been credited with creating waves in the art world for nearly the past 35 years. Critically examined in museums and art schools across the world, his work has also been the subject of much discussion in entertainment law, intellectual property rights and art law circles everywhere owing to the numerous copyright infringement suits he has been party to. Inspite multiple brushes with the law, Koons continues to court controversy and legal ire proven by the recent allegations of copying made against him in December 2014. So what is Koons upto that’s been getting all this media and legal attention? Here’s a breakdown of his past, present and possibly future transgressions with the law.

 What are the most recent art-law controversies Koons has been involved in?

This image was shared under a Creative Commons License and was taken from the Flickr photo stream of Jean-Pierre Dalbéra

This image was shared under a Creative Commons License and was taken from the Flickr photo stream of Jean-Pierre Dalbéra

In November 2014, the Centre Pompidou began exhibiting certain works as a part of the retrospective of Jeff Koonsbut trouble started to brew in December, 2014 when one of his porcelain sculpture, ‘Fait D’ haiver‘ found itself in the middle of a rather awkward copying dispute with Koons having been accused of copying a 1985 advertisementconceptualised and created for French clothing company, Naf-Naf. Interestingly enough, the Naf-Nafad was also titled ‘Fait D’ haiver’ and Koons’ sculpture was created in 1988. Both ad and sculpture depict a woman lying on her back in the snow with a pig staring back at her. In both works, the pig has a barrel tied around its neck however this is where the similarities end with Koons’ woman being depicted as dressed in a meshed outfit, exposing her chest and with a pair of goggles resting on the top of her head against her dark hair. Koon’s pig is also adorned with flowers, and is flanked by two penguins – one big and one small. Naf-Naf’s woman is dressed in a coat, lacks the penguins and is of course, available in a black and white format. The creator of the Naf-Naf ad, Franck Davidovici stated that he would be taking the appropriate legal action against Koons, and as a result the Centre Pompidou removed ‘Fait D’ haiver’ from the exhibition.

The copying allegations didn’t end there with another claim being made against Koons within almost a week of the Fait D’ Haiver issue. Titled ‘Naked, the 1988 Koons’ sculpture depicted a young boy and girl in the nude, posing with the boy showing the girl flowers in his hand. Displayed as a part of the Centre Pompidou exhibition, Naked’ also found itself in the middle of a copyright dispute with the widow of photographer, Jean-François Bauret, claiming that the sculpture was a rip-off from a nude photo portrait made by him. The exhibition has chosen to discontinue the display of this sculpture as well, however claims to have done so on the grounds of physical damage having occurred to the sculpture.

Needless to say, the art world is waiting patiently to see what comes of these two claims with art magazines and online forums like Hyperallergic covering the Fait d’ haiver and Naked issues.

Why dig up Koons’ past copyright law suits?

As mentioned earlier, Koons has been at the centre of copyright disputes in the past. In 1992, Koons was sued by Rogers, a professional photographer over the claim that Roger’s black and white photo of a man and a woman holding a number of puppies, had been copied by Koons in the creation of his sculptural work – String of Puppies. The case earned a lot of media attention and ended with Koons losing to Rogers, where the Court held that Koons’s work bore a substantial similarity to Roger’s photographic work. In addition, Koons attempts to claim fair use and parody were unsuccessful when the court stated that Koons’ work did not actually target Roger’s work and so couldn’t possibly be considered as a parody. As a result, Koons was ordered to pay Rogers a big monetary settlement, along with the remaining sculptural piece he had created.

This image was shared under a Creative Commons  Attribution license and was taken from the Flickr photo stream of Sam Howzit

This image was shared under a Creative Commons Attribution license and was taken from the Flickr photo stream of Sam Howzit

In 1993, Koons tried claiming the parody-fair use defense again when he was hauled up for having copied and incorporating an image of popular comic canine, Odie as a part of his sculptural work “Wild boy and puppy”. Once again, the court ruled against Koons.

By 2006, Koons was fast becoming associated with a genre of art, often described as appropriation art, and his work Niagra’ found itself at the centre of another copyright dispute. This time, Koons was battling against fashion photographer Andrea Blanch who claimed that Koons had copied her photographic work Silk Sandals by Gucci”. “Niagra” was made on canvas and featured the model’s shoe adorned leg from “Silk Sandals by Gucci” against a very different backdrop. Koons opted to claim transformative use stating that his work had sufficiently changed the context and the understanding of Blanch’s work. The court chose to rule in favour of Koons.

If you’d like to get a better understanding of the principles and other details involved in these three instances, do check out this piece featured on the Owen, Wickersham & Erickson P.C. blog. Re-examining all these cases and the rulings can really help us understand what options the different artists have in the latest bout of copying.

What are the possible outcomes of this recent legal issue?

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Jean-Pierre Dalbéra

This image of Koons’ famous work Balloon Dog was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Jean-Pierre Dalbéra

By the looks of it, Koons and his legal representation will really have to play their cards right if they want to rely on defences like fair use, parody and transformative use. As is evident from previous experiences, Koons has had both good days and bad days in court. The result of both copyright infringement claims against him really depends on a few simple questions:

  • Can Koons and his lawyers show that people remember and identify the Naf-Naf ad and Bauret’s photographic portrait in their original contexts?
  • How different is the context of Koons’ works?
  • Is Koons’ work directly targeting specific works or is it attempting to comment on a larger societal issue?

One of the leading resources on intellectual property, IPKat has some interesting comments on what Koons might expect in accordance with French law – definitely worth reading.

 

What do cases like that of Koons say about the cultural and societal treatment of art and artist credit – what are the lines and should they be drawn?

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of David Goehring

This image was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of David Goehring

Cases like these often remind us of how difficult it is to establish originality and creative honesty, especially when creating art that is primarily referential. Koons’ work, like many others can be treated as commentary on existing society and art and the question is should such creative expression be encouraged, protected and capable of monetization, especially if it incorporates the work of others? This is a difficult question to answer and I argue that this is largely because of our understanding of ownership and creativity – an understanding that is complicated by protective structures like the copyright regime.

An increasing number of legal scholars agree that although copyright was introduced as an incentive for creativity, it’s assuming a stronger role as a disincentive due to the fact that it creates boundaries and restrictions on the use of creative material. Copyright infringement is a term that is thrown around a lot more often than it used to be, and perhaps this is indicative of greater awareness among artists, it could also be a step back for the creative community, preventing more of us from re-interpreting works of art and scholarship. If you’d like to read more about how commonplace copyright infringement is, then do have a look at Infringement Nation by John Tehranian.   On the other hand, what’s not to appreciate about a legal system that’s actually working hard to protect smaller artists from manipulation and misappropriation at the hands of bigger, richer or powerful artists.

What happens to Koons and his exhibits is definitely something of interest to the art world and art-lawyers everywhere, and if any of you would like to add to this post or share your comments, opinions or questions on anything covered in this post, then please do leave a comment below.

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