Jeff Koons has been accused of plagiarizing a 1985 advertisement for French Clothing brand Naf Naf. Franck Davidovici, the Frenchman who created the ad in question, has claimed that Koons’s sculpture Fait d’Hiver (1988) is a blatant copy of his work. An example of the sculpture is currently on view at the Centre Pompidou as part of the artist’s retrospective.
As the AFP initially reported, citing anonymous sources close to the case, the advertisement featured a woman laying on her back in the snow with a small pig, which sports a rum barrel around its neck and is nuzzling the top of her head. It was also called “Fait d’Hiver.”
Koons’s artwork, part of his well-known “Banality” series, features Italian porn star Ilona Staller styled with similarly greasy, short black hair and also being approached by a pig. Koons’s sculpture, of which there are four copies (an edition of three and one artist proof) does differ slightly from the ad. In the artwork, the pig’s barrel is attached to its neck by a lei. An emperor penguin and its chick accompanying the pig check out Staller, who is presented with her breasts exposed through a mesh top.
However, Davidovici’s lawyer, Jean Aittouares, confirmed to multiple sources that a “legal action” was underway. A French bailiff reportedly went to the Pompidou’s Koons retrospective on Thursday of last week to take a picture of Fait d’Hiver (1988). Aittouares did not specify further as to the nature of the proposed legal action.
According to the artnet Price Database, one edition of Fait d’Hiver (1988) sold at Christie’s New York in November 2007 for $4.3 million. Another example was bought in at a Phillips de Pury & Luxembourg sale in New York in November 2001.
The case marks the fourth time that Koons has been taken to court over a work from his “Banality” series. In the past, his legal representatives have argued that the works did not infringe on the copyright protections of his sources due to a “fair use by parody” provision in US copyright law. (A similar defense was used in the recent Prince v. Cariou case.)
Koons lost two of the three copyright infringement cases that have thus far been brought against him. The first, Rogers v. Koons, was decided against the artist in 1992 and involved the appropriation of a photograph which depicts a couple holding a group of puppies. Likewise, Koons lost a case brought against him by United Features Syndicate, over the use of “Odie,” a character featured in Garfield. He did, however, prevail in a case dealing with his appropriation of fashion photographer Andrea Blanch’s image of a woman’s feet wearing Gucci sandals, which Koons included in a portion of his 2000 painting, Niagra.
Despite the changes Koons made to the original presentation of the “Fait d’Hiver” advertisement in his sculpture, he may not be protected under the fair use by parody or transformation clause. As copyright lawyers Owen, Wickersham, and Erickson explain in analyzing the previous cases brought against the artist, “Even a quantitatively small amount of copying can be infringement if it copies a qualitatively important part of the original work.” They note a common misconception “that you can avoid infringement by making at least 20 percent changes from the original,” but counter, “This is not true. Infringement is not a mathematical formula.”