Appropriation: original creation or copyright infringement?

The movement of appropriation materializes notably through the works of Andy Warhol, Roy Lichtenstein, Elaine Sturtevant, Sherie Levine or Jeff Koons.

Andy Warhol, 1962

Elain Sturtevant, 2004

Yet, by its very essence, appropriation quickly began to raise legal issues under intellectual property law.

Indeed, the lack of cooperation between the artist of the pre-existing work and the artist who appropriates it regularly gives rise to disputes as to whether copyright can be limited in scope in the name of art and creative freedom.

The Instagram account @whos____who was created precisely with the aim of anonymously denouncing artists who would be inspired by their peers, beyond, according to its creator, the notion of appropriation.

If it is indeed a historically recognized artistic trend, what is the limit separating appropriation from imitation? Does freedom of creation and expression take precedence over copyright?

In principle, copyright grants a monopoly to the author allowing him to authorize and prohibit any reproduction of his work. However, in France as in the United States, appropriationism can sometimes be justified by the exception of parody or the exception of fair use.

The principle – Prohibition to reproduce a work without authorization

The classical current of appropriationism

On the occasion of a decision rendered by the Tribunal de Grande Instance de Paris recalled the principle that any reproduction or representation of an original work without the authorization of its author constitutes an act of infringement (TGI Paris, November 8, 2018, RG n°15/02536).

In this case, in 1988, the artist Jeff Koons created a sculpture entitled “Winter Fact”, inspired by an advertising campaign for the NAF-NAF brand that was released in 1985. This sculpture represents a young brunette woman with short hair, lying in the snow and overhung by a pig wearing a barrel around its neck and by a penguin.

The photograph taken by NAF-NAF’s Art Director had minimal differences from Koons’ sculpture and the entire staging of the photograph was repeated.

The photographer behind the pre-existing photograph has sued Jeff Koons for copyright infringement, as well as many other art world actors who have exhibited and/or reproduced Jeff Koons’ work.

The judges condemned Jeff Koons for copyright infringement and thus considered that an act of creation, whatever it is and whatever the artistic movement to which it belongs, can infringe prior rights.

The judgment rendered by the Paris Court of First Instance was confirmed by the Court of Appeal in a decision rendered on February 23, 2021 (CA Paris, Pôle 5, ch.1, February 23, 2021, n°19/0959). The Court ruled that “(…) copyright infringement is assessed on the basis of the similarities between the works in question and that the similarities are predominant in this case compared to the differences noted, as Jeff Koons’ sculpture takes up the combination of the original characteristics of the photograph “Fait d’hiver”.

The Court of Appeal also increased the amount of damages awarded to NAF-NAF.

In another case, the Court of Appeal (CA Paris, Dec. 17, 2019, Pôle 5, ch. 1, No. 17/09695) has once again convicted artist Jeff Koons of infringement. He had indeed taken over, in the form of a sculpture, two naked children strongly recalling the photograph entitled “Children” by Jean-François Bauret, representing two naked children. According to the Court of Appeal, the Jeff Koons statue “takes up the characteristic combination that reveals the originality of the photograph ‘Children’ by Jean-François Bauret”.

Thus, the freedom of creation is not an absolute right and the artists of the appropriationist current must be vigilant at the risk of being opposed to previous authors’ rights and of being condemned to damages and interests sometimes very heavy.

However, this type of condemnation remains subject to the demonstration of the originality of the initial work.

Recent trends in appropriationism

If today some artists appropriate existing creations, there are now algorithms that can take the style of an artist and reproduce it on an image. This is notably the case of the “DeepArt” algorithm designed at the Ecole Polytechnique de Lausanne.

This new practice, allows to trivialize the resumption of an artistic style, by appropriating it on any type of visual support, such as photos for example. The creations resulting from this process could then be exploited, just like Jeff Koons’ sculpture, and exhibited or used for advertising purposes.

This raises the question of whether one can appropriate a style, if it is original?

No jurisprudence has yet been pronounced on this subject, given the fact that creations by artificial intelligences are not yet regulated.

The regime of the derived work could be considered, as soon as the said style has fallen into the public domain or after authorization of the author of the initial style.

However, French law provides for exceptions to the principle of strict compliance with copyright, in particular the exception of parody. In the United States, the rule of fair use also allows, in certain cases, to avoid the authorizations required by copyright.

Existing temperaments – Parody exception, freedom of expression and fair use

French copyright law, like American copyright law, provides for certain limitations to the prerogatives of copyright. These limitations are based on the need to balance the fundamental property right of copyright with the equally fundamental freedom of creation and expression.

The parody exception

Article L.122-5 of the French Intellectual Property Code thus establishes the exception of parody according to which an author cannot prohibit ” parody, pastiche and caricature” of his work.

To be characterized, parody must include two cumulative conditions(CJEU, gr. ch., Sept. 3, 2014, aff. C-201/13, Deckmyn c/ Vandersteen; Cass. Civ. 1, March 22, 2019, n°18-12.718):

• The parody must evoke a pre-existing work, without creating a risk of confusion in the public mind,
• The parody must be intended to make people laugh or mock, and must not degenerate into abuse (e.g. denigration of the original work).

As an example, the parody exception was recently admitted to justify the unauthorized reproduction of the bust of Marianne “Brigitte Bardot” on a newspaper cover, represented half immersed to illustrate the title ” The Shipwreckers – France is sinking ” (Court of Cassation, Civ. 1, March 22, 2019; Paris Court of Appeals, December 22, 2017, n°16/20387).

Indeed, the photomontage partially reproduces the original work and adds its own elements, in addition to constituting a humorous metaphor illustrating the purpose of the article. Therefore, there is no confusion between the original work and the parodic use made of it, and no disproportionate harm is done to the legitimate interests of the author.

In the same sense, the judges held that the misappropriated use of the famous photograph of Che Guevara constituted a parody within the meaning of the Intellectual Property Code, so that freedom of expression should prevail over the copyright of the original photograph (CA Versailles, Sept. 7. 2018, n° 16/08909) :

Photo of Che Guevara taken by Alberto Korda

Che was a gamer” T-shirt

In this decision, the judges held that:

• The commercial exploitation of the parodying work does not exclude the exception;
• The parody was all the more constituted since the T-shirt with the appropriationist work in question was part of a range of articles hijacking different icons.

To return to the decision opposing Jeff Koons to the artistic director of NAF-NAF, the judges considered that the artist Jeff Koons, ” by taking up all the original elements ” of the original work, ” cannot claim to have wanted to provoke any debate” . The exception of parody had then been rejected by the Court (TGI Paris, November 8, 2018, RG n°15/02536) as well as by the Court of Appeal (CA Paris, Pôle 5, ch.1, February 23, 2021, n°19/0959).

American fair use

Fair use is a doctrine applicable in the United States according to which a work reproduced in particular ” for purposes such as criticism, comment, journalistic information, teaching ” does not infringe the copyright of the author of the pre-existing work.

The assessment of fair use is made with regard to the purpose and nature of the use, the nature of the pre-existing work, the quality and importance of the part of the work reproduced and finally the effect of the unauthorized reproduction on the value of the pre-existing work.

The exception of fair use is thus likely to accommodate defenses based on parody and/or on the balancing of the fundamental rights involved.

Here again, American decisions concerning the appropriationist movement and its relationship to fair use and parody have been rendered with regard to works by Jeff Koons:

• In 1993, Jeff Koons’ sculpture “Wild Boys and Puppy” was accused of reproducing the character of Odie from the comic strip Garfield.

After noting that Koons’ work was made for commercial purposes and that the original work was reproduced in its entirety, the New York district judges held that such a reproduction ” exceeds the acceptable threshold of copying permitted by the fair use doctrine.

The judges also refused to characterize the parody in that Jeff Koons could just as easily have used any other character or animal to serve the same purpose, namely to evoke the ” banality of life.

• In 2006, Jeff Koons was again taken to court in the United States because of one of his photomontages reproducing several photos of legs, including a photo from an advertisement for Gucci shoes (Andrea Blanchs v. Jeff Koons, U.S. Court of Appeals^2nd Circuit, October 26, 2006).

This time, the fair use exception was accepted by the judges, notably because Koons’ work did not reproduce the entirety of the pre-existing advertisement and had a “totally different purpose and meaning” from it. However, the legs reproduced in Jeff Koons’ work were the central element of the previous advertising visual.

Thus, the assessment of the fair use exception in the United States bears many similarities to that of the French parody exception, although economic considerations are much more important in the United States.

The artists who support the appropriationist trend must be extremely vigilant, insofar as the assessment of the parody exception is very casuistic and highly uncertain, given the assessment of the “humorous intention“, the author’s right to authorize or prohibit remaining the principle in this matter.