Artist Jeff Koons found guilty of plagiarism by the Paris Court of Appeal

The Paris Court of Appeal, by judgment no. 34 of 23rd February 2021, definitively convicted American artist Jeff Koons for plagiarism for having substantially reproduced in the porcelain sculpture entitled Fait d’Hiver of 1988 the homonymous photographic work made in 1984 by the freelance artist and photographer Franck Davidovici.

In 2014 the plagiarism work was shown at the Centre Pompidou in Paris, which is why Davidovici sued Koons, the Centre Pompidou, the Prada Foundation as the owner of the work and the Flammarion as editor of a book containing an image of the sculpture in question.

Having fully accepted the appellant’s complaints at first instance, Koons appealed against the decision of the Tribunal de Grande Instance de Paris to the Court of Appeal on two main arguments in support of the legitimacy of its reproduction of the work of others: the applicability of the parody procedure and the protection of the freedom of artistic expression within the meaning of Article 10 of the ECHR.

From the first point of view, the Paris Court considered the discipline of parody not applicable because, even if Koons’ sculpture was to be considered an “expression of humor or derision”, the requirement – prescribed by the recalled Deckmyn decision of the Court of Justice of the European Union – to “evoke an existing work while being noticeably different from it” would be lacking in the present case. In fact, the appeal judges found that the sculpture at issue had incorporated the original elements of the plagiarized work to such an extent that they deemed that it integrated a hypothesis of partial reproduction of Davidovici’s photography.

For what concerns the need to safeguard the freedom of artistic expression, the Court held that, as provided for in comma 2 of Article 2 of the ECHR, this freedom is not absolute and, therefore, must necessarily be balanced with the rights of third parties. In the present case, the ownership of copyright over Davidovici was therefore considered to be a proportionate and necessary restriction on freedom of expression.

On the basis of these reasons, the Paris Court of Appeal rejected Koons’ appeal and definitively ordered the American artist to pay damages in favor of Davidovici for copyright infringement.