Jeff Koons and the Never-Ending Story of Appropriation and Plagiarism
This past year was supposed to be one of celebration for the American contemporary artist Jeff Koons. In 2014, the Whitney Museum of American Art presented the most comprehensive survey of Koons’ career to date. The exhibit also traveled to the Centre Pompidou in Paris late last year, and will be in Bilbao in June 2015. The retrospective drew big crowds at the Pompidou, but the subjects of two of his works have spurred the next chapter in his series of legal battles over copyright infringement.
Part 1: “Fait d’Hiver”
The first concerns a 1985 advertisement for the French clothing brand NAF NAF. Frank Davidovici, the Frenchman who created the ad in question, has claimed that Koon’s sculpture “Fait d’Hiver” (1988) is a blatant copy of his work. The Plaintiff’s print ad was created for NAF NAF’s autumn-winter campaign, and shows a woman with a short, shaggy haircut, lying back in the snow while a pig with a St. Bernard-issue neck barrel sniffs at her head. The ad also features the words “fait d’hiver” – a twist on the expression that usually refers to ordinary news events of the day.
Three years later, Koons created four identical porcelain sculptures with a short-haired woman in the same position, also accompanied by a pig with a barrel around its neck. It is reported, however, that Koons’s artwork – part of his Banality series – is intended to feature Italian porn star Ilona Staller. (Aside: Eventually, his muse became his wife, but only for a short period of time.) In its original catalogue, the work “Fait d’Hiver” is described as a “Walt Disney version of an erotic fantasy,” that “identifies a primal hunger at the heart of American consumerism.”
It doesn’t seem that Davidovici agrees. Rather, he sees Koons’s porcelain sculpture as a rip-off.  After all, it would be easy enough to prove via circumstantial evidence that Koons had access to the print ad between 1985 and 1988. Plus, the ad and the sculpture are eerily similar: the pose of the female, the haircut, the pig with barrel…which two people would have the same thought to create such a thing? In Koons’s defense, he did adorn the pig with floral lei, plus there is the addition of two penguins awkwardly watching the shenanigans before them. Either way, the sculpture was removed from display at the Pompidou, and its destiny at Bilbao is to be determined.
Part 2: “Naked”
Shortly after the “Fait d’Hiver” news broke, a second sculpture by Koons conspicuously went absent from his retrospective at the Pompidou. The work at issue is the piece called “Naked” (1988). Reportedly, the sculpture is directly inspired by a nude photo portrait of a young boy and girl by Jean-Francois Bauret. Since the photographer died in January 2014, his widow Claude Bauret-Allard complained to Koons and the museum’s administration of copyright infringement.
There has yet to be a formal response to Bauret-Allard’s letter made by either the museum or Koons. Nevertheless, the sculpture is no longer on view in the exhibition. Yet, the work was included in the catalogue and was shown with the other Banality works at the Whitney Museum earlier in the year.
Lawsuit Déjà vu
These mark the fourth, and potentially the fifth, time Koons has been taken to court over a work from 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 over the sculpture “Wild Boy and Puppy,” after he used the likeness of Odie from Garfield. Both times he claimed fair use by parody and lost.
Koons had better luck 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 Koons’s lawyer that Blanch did not have the image copyright to the Gucci sandals, and that without them the photograph would be merely a nondescript picture of someone’s feet.
The Limits of Appropriation – The Never-ending Story
Jeff Koons is an appropriation artist. He is the man who gave us the giant chromium stainless steel balloon dog. He is also a champion of the Found Art movement, which describes art created from undisguised, but often modified, objects or products that are not normally considered art. He has also latched onto the theory of Commodity Sculpture, where commercially mass-produced items are arranged in the art gallery as sculpture. Thus, Koons’s doctrine revolves around producing conceptual pieces to comment on contemporary culture.
Naturally, Koons would defend his appropriation of others’ work that he “finds” as fair use. ,  His mission is to comment and to transform, which is exactly what fair use protects. Obviously, this is art, people!
On the other hand, many would argue that his appropriation crosses the line into plagiarism. Other artists have faced similar allegations: Andy Warhol, Damien Hirst, Shepherd Fairey, and Richard Prince, to name a few. Despite the complaints, these artists, including Koons, are highly successful. In fact, Koons’s retrospectives at both the Whitney and the Pompidou were milestone box-office successes.
All of these examples bring up the eternal question of, “at what point does artistic appropriation become copyright infringement?” There never seems to be a consistent answer. Even Koons himself doesn’t seem to know what he thinks. In fact, he sued a San Francisco store and gallery owner in 2011 for selling balloon dog bookends. He dropped the claim, though, after the defendant responded that neither Koons nor any other human being could own the idea of a balloon dog. That, at least, seems fair.
 In a copyright infringement analysis, Davidovici will have to show first, that he has a valid copyright in his own ad, and second, that Koons copied his protected material. The second prong is shown by establishing that Koons had access to the advertisement, and if so, the plaintiff must show that the ad and the sculpture are substantially similar.
 17 U.S.C. § 106.
 French law does not have a fair use defense as comprehensive as the U.S. one, but article L. 122-5 of the Intellectual Property Code enumerates several uses of a protected work, which the right holder cannot oppose. “The parody, pastiche and caricature, observing the rules of the genre” are among these exceptions. One should note that this article is similar to article 5(3)(k) of the InfoSocDirective (“use for the purpose of caricature, parody or pastiche.”)