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Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

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Last week, the Paris Court Appeal ruled (decision No 152/2019) in favour of the estate of late French photographer Jean-François Bauret in proceedings brought against, inter alia, US artist Jeff Koons (an artist who, as readers will know, has been sued a few times for copyright infringement: see, eg, here, here, and here).

The action related to the unauthorized reproduction of a photograph (Bauret’s ‘Enfants’, shown below on the left hand side) in a sculpture (Koons's ‘Naked’, below on the right hand side).

'Enfants' (L) and 'Naked' (R)

The defendants had advanced a number of arguments, including that:

‘Enfants’ is not original;
even if it was, ‘Naked’, would not incorporate any original elements thereof;
even if prima facie infringement was established, freedom of the arts and parody would prevail over copyright.

The court rejected them all. Let’s see what happened in greater detail.

Background

In 1970, Bauret realized a black-and-white photograph titled ‘Enfants’. No print of the photograph was sold, but in 1975 the photographer authorized the making of postcards carrying the image of the work.

In 2014, the Bauret estate found out that Jeff Koons had realized a porcelain sculpture, ‘Naked’, which was similar to the ‘Enfants’ photograph. Koons’s work had been made in 1988 in 4 copies as part of the Banality series, a readymade collection of artworks that contains a mix of pop art and kitsch.

The sculpture was never exhibited in France, though in 2015 it should have been on display in an exhibition at the Centre Pompidou in Paris.

The Bauret estate sent a warning letter to both Koons and the museum. For reasons linked to damage during transportation, ‘Naked’ was not included in the exhibition in the end. The museum subsequently also removed the image of the sculpture from the exhibition catalogue.

A lawsuit followed and, in 2017, the TGI Paris partly ruled in favour of the photographer’s estate. Both parties appealed.

Aside from issues concerning the personal liability of Koons, the judgment is particularly interesting as far as substantive issues of copyright subsistence and infringement are concerned.

Originality of ‘Enfants’

As regards the protectability of the photograph, the defendants had submitted that Bauret had failed to express his own personal touch. The choices made were not sufficient for the work to be considered his own intellectual creation, in that the photograph represented a ‘spontaneous pose’ assumed by the two children and the estate had failed to demonstrated where the originality of such creation would lie.

The court disagreed, and held that Bauret’s work revealed a new concept of nude, which is raw and devoid of any sexual connotation, and such as to disclose the personality of the author. Among other things, the particular use of the light was meant to confer some ‘sculptural’ character to the photograph and the overall composition (including the pose and expression of the children) served to add a ‘geometric’ dimension to the work. According to the court, the latter in particular served to dispel any idea that the pose of the children would be spontaneous: rather, they had been directed by the photographer to assume a certain pose and expression.

In light of all this, like at first instance, the photograph was found to be original and protectable.

Prima facie infringement

The claimants pointed to the several similarities between the photograph and challenged the relevance of the argument, made by the defendants, that the different character (real vs fictional) and message (children’s innocence vs Adam & Eve) conveyed by, respectively, the photograph and the sculpture would exclude the recognizability of the former in the latter (it should be noted, however, that Koons never denied that he had had access to the photograph).

The defendants submitted that the sculpture had not reproduced anything that would confer originality to the photograph, and highlighted the differences between these two, including the colour, dimensions (a 2D photo vs a 3D sculpture) and size ('Naked''s height is 1m), as well as other differences (hair colour, navel, children’s gaze, position of the hands, background, elements in the composition).

The court disagreed, and found that the sculpture had actually incorporated the “essential features” of the photograph, which constituted its original character.

Defences

Copyright and freedom of expression

The court also considered an important point: to what extent can freedom of expression – including freedom of artistic expression – restrict or even trump copyright protection?

To answer this, the court followed a similar approach to the one indicated (correctly) by the Court of Justice of the European Union (CJEU) in its recent Grand Chamber rulings in Funke Medien, Spiegel Online, and Pelham [Katposts here, here, and here] notably that only available copyright exceptions and limitations can be relied upon in an infringement action, and that it is not possible to invoke directly fundamental rights and freedoms or a ‘fair use’ of a work to trump the application of copyright's exclusive rights.

In this sense, like the CJEU, the Paris court confirmed that the balance between different rights and freedoms is internal to the copyright system, and has been undertaken by legislature when envisaging available copyright exceptions and limitations.

In all this, the court also considered that the unlicensed use of the photograph by Koons was not “necessary” for the exercise of his own freedom of expression.

Parody

The defendant had also raised an argument that the use at issue could qualify as parody. The court referred to the 2014 CJEU Deckmyn decision [Katposts here] and the requirements that, for a work to be considered a parody, first, it must evoke an existing work while being noticeably different from it and, second, it must constitute an expression of humour or mockery.

The court considered that neither requirement would be fulfilled in the case at issue.

'Chats', by Merpel

Comment

The decision appears correct from a substantial standpoint and is also compliant with case law of the CJEU. The court correctly applied the Painer test (though it did not expressly refer to that decision) for determining originality of a photograph, by considering the ‘free and creative choices’ that the photographer had made in the pre-shooting phase, when taking the photograph, and in the post-production phase.

It also appropriately applied (again, without mentioning them expressly), the CJEU holdings in Funke Medien, Spiegel Online, and Pelham.

In all this, the most interesting aspect of the decision probably relates to the application of the CJEU Deckmyn decision. As mentioned, one of the characteristics of a parody is that it must constitute an expression of humour or mockery. The CJEU did not clarify whether this requirement is fulfilled when an alleged parody pursues a humorous intent, or whether it is also required that it achieves it (as the Advocate General had suggested in his Opinion).

If the test was ‘intent’, then the exception under Article 5(3)(k) of the InfoSoc Directive would be broader than if a humorous ‘effect’ was also required. Above all, requiring just intent would be better compliant with the need to safeguard parody as a means to exercise freedom of expression. As I discus at greater length here, the difficulties that might arise should a humorous effect be required, lead to the conclusion the correct test under Deckmyn is that of a humorous ‘intent’.

In its decision the Paris Court of Appeal suggested that both intent and effect might fall within the concept of ‘expression of humour or mockery’ when it stated that: “La parodie doit aussi présenter un caractère humoristique, faire oeuvre de raillerie ou provoquer le rire” (“The parody must also have a humorous character, make fun of or provoke laughter”). So, an acceptable parody might perhaps be both one that makes fun without necessarily provoking laughter and one that provokes laughter without necessarily making fun. This might be an interesting take worth elaborating further in future case law. In all this, however, neither was the case of ‘Naked’.

[The IPKat thanks Stéphanie Legrand, who represented the Bauret estate in the proceedings, for kindly providing a copy of the decision of the Paris Court of Appeal]

UK and France launch rapid deployment exercise

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Troops and vehicles from France arrive in the UK to deploy on Exercise Griffin Strike. Crown Copyright.

More than 5,000 personnel from the UK and France will take part in Exercise Griffin Strike, which will test the Combined UK and French Joint Expeditionary Force (CJEF).

The exercise will see a UK-French headquarters planning and executing major land, sea and air activity for the first time in a demonstration of the force’s ‘full validation of concept’. This marks a significant milestone in the generation of a rapidly deployable force for bilateral operations ahead of any coalition action.

The CJEF has been developed since 2010 as a product of the bilateral Lancaster House Treaty and will enable the UK and France to deploy forces rapidly to conflict zones ahead of a wider NATO or coalition operation, or to meet peace-keeping, disaster relief or humanitarian assistance requirements.

Defence Secretary Michael Fallon said:

This joint force will combine the might of two of the world’s biggest militaries, backed by our rising defence budget. It will enable us to deploy rapidly with our French allies, helping to keep Britain safe while contributing to security in the world.

This exercise will demonstrate the sending of a tri-service force into an area of operations. Aircraft including Typhoon and Rafale jets will operate from RAF Leeming in North Yorkshire, while at sea warships including HMS Ocean, Bulwark and Duncan will work off the south and west coast of England with French ships including FS Dixmude, FS Cassard and FF La Motte Piquet. On Salisbury Plain elements of the Army’s 3(UK) Division and French 7th Mechanised Brigade including paratroopers, armoured units and infantrymen, will work together.

Standing Joint Force Commander Maj Gen Skeates CBE said:

Exercise Griffin Strike marks a key milestone in the development of the Combined Joint Expeditionary Force, the embodiment of our military relationship with France. The next two weeks will see French and British servicemen and women training side by side on the sea, on land and in the air. Together with Admiral Laurent Isnard, my French counterpart, we are anxious to demonstrate that our military partnership is now on a new level and show how the combined UK-France Combined Joint Task Force in the most testing of circumstances, stands shoulder to shoulder. This is an immensely exciting prospect and one which will put our sailors, soldiers and airmen through their paces.

Simultaneously, over 3,400 more NATO troops will exercise by land, sea and air during the two weeks of Exercise Joint Warrior.

During Joint Warrior, much of which will take place off the coast of Scotland, 22 ships, four submarines and more than 40 aircraft from 12 NATO nations and three partner nations will take part. Around 1,500 personnel from the Royal Navy, British Army and Royal Air Force will participate. Other countries taking part include Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, New Zealand, Norway, Poland, Spain, Sweden, Turkey and the US.

Last year, following a UK offer, Joint Warrior was linked to the NATO military exercise programme. That allowed the alliance to send specific groups to participate, including Standing Maritime Groups, Maritime Counter-Measures Groups and NATO Airborne Early Warning Aircraft. Joint Warrior is an example of the UK and NATO allies working together as a coalition on land, sea and in the air. This includes training in anti-submarine warfare, anti-surface warfare, submarine training, mine countermeasure training and maritime security operations. On land and in the air the exercise will offer the UK and its allies training in air operations, close air support, tactical intelligence surveillance target acquisition and reconnaissance, electronic warfare training, jamming operations and joint firing.

Captain Andrew Stacey, Royal Navy, responsible for the planning and delivery of Joint Warrior said:

Joint Warrior remains a unique opportunity for UK, NATO and Partner Nations’ forces to train alongside each other and test their capabilities in an operationally realistic and challenging environment. The complexity of the exercise, which is always evolving, supports maritime, land and air training at large scale and delivers intense scenarios that drive our combined warfighting capabilities.

France says will end military operation in C.Africa this year

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France is building up its assets in Benghazi Libya, satellite imagery reveals

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Analysis

Satellite imagery confirms the arrival of French special operations forces to Benina air base near Benghazi, Libya. The base, which is under the control of Gen. Khalifa Hifter's forces, was rumored to host as many as 180 French soldiers in February, but this has been neither confirmed nor denied.
In the imagery Defense News obtained, experts at AllSource Analysis identified enhanced security measures around certain compounds in the air base, including raised barriers at security perimeters and foliage removal to improve observation and provide fields of fire to forces securing the facilities. While the imagery does not clearly confirm the forces' nationality, security measures such as these are typical precautions that Western forces take when deploying to conflict areas. The absence of any noticeable air assets or military vehicles indicates that this is a limited presence, one that is not intended to take part in significant combat operations, but rather support training, advisory or intelligence operations. Nevertheless, this preliminary foothold could facilitate a rapid buildup at the base in the future.

And as foreign militaries increase their presence in Libya, they must identify local partners to train, support and advise. But because Libya lacks a unity government, Western countries are forced to work with a variety of local militias and political groups, many of which are in conflict with one another and clash violently throughout the country. Until a clearer prospective political solution emerges, U.S., British, French and Italian military forces have decided to work incrementally in both western and eastern Libya to fight the Islamic State. In western Libya, U.S. and British forces are reportedly working with militias from Misrata, while in the east, French forces reportedly work near Benghazi with Gen. Hifter's Operation Dignity. December reports projected that the foreign military intervention forces in Libya, currently numbering in the hundreds, will eventually total 6,000 soldiers.
For several reasons, Western militaries must be discrete as they expand into Libya. First, many Libyans vehemently oppose their presence, forcing Western countries to operate under the radar to avoid political repercussions. Second, Western militaries must work delicately with Libya's many different groups without getting pulled into competing rivalries. Finally, since many Libyans despise Gen. Hifter, French support of his forces is especially controversial. Still, his allies' gains against militants in Benghazi make working with the general useful for French and other Western militaries.

France Reproposes ‘Attractive’ Rafale Deal For India

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In a bid to break the ongoing impasse on the Rafale fighter jet deal, a high-level delegation of Indian and French officials met in the South Block on Wednesday afternoon. The Price Negotiation Committee formed to work out modalities on the 36 Rafale warplanes has not been able to conclude its task as it has not been able to strike a compromise.
Thirty-six nuclear-capable Rafale jets will be delivered to India in fly-away condition, fitted with weapon systems, such as array radar, high end beyond-visual-range missiles and defensive weapon systems. The deal will also include a support and maintenance package with the manufacturer, Dassault. The Indo-French High Committee on defence cooperation meeting scheduled for March 9, 10 was chaired by the Defence Secretary G Mohan Kumar. Defence industry, procurement and research technology were the areas that were focussed. The status of several defence deals between the two nations was also discussed, including the Rafale jet and Short Range Surface to Air Missile joint development.
“During the meeting, it was believed that French authorities gave a fresh proposal with amendments to make the Rafale deal more attractive. The Indian side is examining the proposal,” an officer said. According to a top Defence Ministry official privy to the development, India is targeting a cost between `65-68,000 crore (8 billion Euros) for 36 Rafale fighter jets. However, on the other side, Dassault, which manufactures the aircraft has quoted a whopping figure of the nearly 90,000 crore (12 billion Euros).
As a compromise was not reached, the deal could not be inked during French President Hollande’s visit to New Delhi last month during Republic Day celebrations. It only dashed the hopes of the IAF, which is struggling to cope with its depleting fleet strength, but also caused embarrassment to New Delhi as no major announcement was made during the meeting of the top political leadership of both countries. In a joint statement on 25 January, Prime Minister Narendra Modi and French President Hollande had hoped to sort out the financial aspects in ‘couple of days’. Even Dassault Aviation had said it expected a complete agreement in four weeks.

French patent information - gratuit!

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French patent attorneys: an endangered species?

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