Fait d’hiver
Plagiarism and Art
“The entertainment industry, the advertising industry have taken [the] tools from the art world and made themselves much more politically potent. We are really devastated and very impotent right now. A photographer just working for an advertising company has a platform to be much more politically effective in the world than an artist.” — Jeff Koons
American artist Jeff Koons’ (b. 1955) has been likened to both Andy Warhol (1928-1987) and Marcel Duchamp (1887-1968) and, whether rightly or wrongly, one can hardly talk of the last three decades in art without at least a mention of Jeff Koons. Since its creation in 1986 the artist’s 3-foot tall inflatable Rabbit (1986) helped establish him as a force in the contemporary art world. Without ever offering up a single meaning, it embodies a whole range of references, sending the viewer on an endless journey of association, reminding us of everything from Disney to Playboy, Easter and childhood. “Look at the Rabbit,” Koons said to David Sylvester (1924-2001), the British art critic and curator. “It has a carrot to its mouth. What is that? Is it a masturbator?” Despite constant and endless lampooning of Koons oeuvre, which has become something of a fashionable pastime amongst the art cognoscenti, co-chief art critic of the New York Times Roberta Smith argues that while it’s “easy and fashionable to hate” the artist’s work, “he changed sculpture, bringing together Pop, Minimalism and Duchamp in a new way … elevating overlooked objects.” Koons’ Fait d’hiver (1988) depicts the Italian porn star Ilona Staller (the artist’s ex-wife), lying in the snow, being nuzzled by a pig. It was part of his Banality series, debuted in 1988, for which the artist created a series of porcelain and wooden sculptures based on photographs, archetypal objets and scenes from advertisements; it was meant to be a commentary on the imagery of mass media. Several of the sculptures included famous characters (for eg the Pink Panther) and others were based on relatively unknown photographs. After being exhibited for over thirty years a porcelain version of Fait d’hiver (there are three editions of the work in total, plus an artist’s proof) sold at Christie’s in 2007 for just under $4.3 million (£3 million) to the Prada Foundation. As it turns out, Fait d’hiver is also a somewhat surreal 1980s campaign for the French fashion brand Naf Naf, which featured a pig (the brands mascot) with a cask of brandy around its neck — recalling the legend of St. Bernard search dogs — coming to the aid of a model buried in an avalanche. The advertising campaign, which, in its entirety, features pigs taking on the role of various animals was a huge commercial success. There are numerous differences between the two works, the most obvious of which being that Koon’s Fait d’hiver is a sculpture and not a black and white photograph; but even if we move past that, Koon’s woman is wearing a mesh top and sunglasses on her head, the pig is festooned with flowers, and then, the sculpture also features two penguins, which are notably absent from the ad campaign. Regardless, to Franck Davidovici, creative director of the clothing brand Naf Naf, the resemblance between the two works was clear the moment he first saw an image of Koons’ work in a catalogue for a 2014 retrospective at the Centre Pompidou in Paris.
Elisabeth Bonamy, Franck Davidovici, and William Klein's "Fait d'Hiver" ad campaign for Naf Naf (1985).
Jeff Koons, Fait d’Hiver (1988). Photo: Courtesy Christie’s via artnet Price Database
Davidovici immediately set about suing Koon’s for copyright infringement, even attempting, at one point, to have the work seized (he failed, as at that stage it had already been removed from the exhibition). According to the French newspaper Le Figaro, Davidovici’s lawyer, Jean Aittouares, said Koons’ work was a “slavish copy” of the original work. “It’s the same work in three dimensions, to which Jeff Koons added flowers, and two penguins [sic] to evoke the cold,” Aittouares told the newspaper. “He completes the plagiarism by giving his work the same title as the advert, Fait d’Hiver.” The title, which translates to “fact of winter,” is a homonym of the French “fait divers,” meaning a short news item. Last week a Paris court of appeal dismissed Koon’s arguments against the claim — including that he should have freedom of artistic expression, and that the work should count as a parody — finding that artist and museum violated copyright laws and owed Davidovici €135,000. Additionally, if the museum or Koons continue to exhibit Fait d’hiver online, they will be fined €600 per day. The judgment states Koons’ sculpture has the same “very recognizable staging” as the ad, relying on the fact that even a lock of hair on the woman’s face is placed in the same position on the left cheek, and that they have the same facial expressions (objectively speaking, of course, Koon’s work does seem to mimic Davidovici’s ad).
Jeff Koons, String of Puppies (1988). Photo: Courtesy Christie’s via artnet Price Database
This is of course not the first time Koons has been in trouble thanks to works displayed in the same 1988 retrospective; shortly after the original show, at the Sonnabend Gallery in New York, the artist was sued by the photographer Art Rogers (1918-2011), whose black and white photograph of a couple holding eight German shepherd puppies formed the basis of Koons’ sculpture String of Puppies (1988). Koons and his lawyer argued that “the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically on both the incorporated object and the political and economic system that created it.” The court pointed to the fact that the copied work must be, at least in part, “an object of the parody, otherwise there would be no need to conjure up the original work”, noting that if the point was to parody society broadly, Koons did not need to copy Rogers’s work specifically. The case was settled for an undisclosed amount. The artist also settled two subsequent lawsuits, the court having rejecting his fair use defence (that he was parodying the source material), one with United Feature Syndicate over his use of the character Odie from the Garfield comic strip in his piece Wild Boy and Puppy (1988). Then again in 2019 a Paris court upheld a 2017 ruling that found Koons, and again the Centre Pompidou, had infringed the copyright of French photographer Jean-François Bauret (1932-2014) to make a porcelain sculpture of naked children holding flowers (While the sculpture was not shown in the 2014 retrospective, images of it were used to advertise the show).
Somewhat ironically perhaps in 2010 Koons’ lawyers sent cease and desist letters to two businesses producing and selling $30 bookends (which were made of painted resin and only came in matte colours) that resembled his mirror-polished stainless steel Balloon Dog (1994-2000); apart from the10-foot-tall versions, which have been exhibited at both the Metropolitan Museum of Art and Versailles, Koons’ now iconic sculpture also comes in a 10 ½-inch version, comparable in size to the bookends. The incident, understandably, prompted much ridicule in the mass media as to whether the artist was claiming the rights to all balloon dogs. Essentially copying is a large part of Koons’ oeuvre —he is after all part of the Pop Art movement, which, unlike the art that went before, aimed to use images of popular (as opposed to elitist) culture in art, emphasizing banal or kitschy elements, most often through the use of irony. Ergo, the question that presents itself: is all Pop Art plagiarism? In court Koons raised as a defence his artistic credo contending that as part of his work he appropriates existing motifs, which means that copying and modifying works is his artistic concept. (The basic rule in copyright law is that whilst ideas are free, forms can be protected by copyright.) The Paris appeal court found however that comparing the works purely on their surface appearance, despite certain differences, similarities prevailed. Of course, arguably, for a genre first used by Duchamp, that aims to analyse art and perception processes, it makes little sense to define it purely by surface appearance.
Art Rodgers, “Puppies”, offset lithograph on coated paper (1985)
Indeed the ruling raises a number of interesting questions as to the appropriation of imagery by Koons as well as artists such as Andy Warhol (1928-1987), John Baldessari (1931-2020) and KAWS (b. 1974). When exactly are such works considered to be “art” and why? “The whole point is to work from commercially purchased objects or images that come from advertising or magazines,” the Pompidou’s then-president Alain Seban said of Koons’s work. Davidovici’s lawyer, however, was not at all convinced, writing in an open letter that, “Legally, appropriation as you understand it is nothing other than counterfeiting. As such, it undermines the author of the original artwork’s fundamental rights, in the same way, theft undermines the owner of the stolen good’s fundamental rights.” Adding that it is “unimaginable” that Seban and the institution he represents would support Koons’ actions. The issue is not only relevant to artists, but to the modern world in which the adoption of imagery has become an ipso facto form of communication. Whilst these processes might initially have originated in Pop Art — today almost everyone uses them in memes and gifs. In creating a meme, much like Warhol’s Campbell’s soup can paintings, one is appropriating and altering visual imagery that is protected by copyright law. In this respect, at least on paper, the law and everyday practices are completely at odds. Whilst not every appropriation is art, and not every piece of appropriation art constitutes a copyright infringement, the line becomes increasingly blurred; for eg Alessandro Michele at fashion brand Gucci has embraced bootleg culture, showing “Fake Gucci” t-shirts, with a logo based on 1980’s counterfeits. In terms of art it might be time the legal system abandoned any outdated notions of “art” being purely an expression of originality; instead finding new ways to deal with movements like Pop Art (notably, French copyright law is generally not as sympathetic to appropriators and does not recognize a concept of “fair use” as flexible as that in the US).
Whilst Fait d’Hiver can longer be shown in France, according to Emmanuel Beaud, the Paris-based lawyer who represented Koons, the decision could have far-reaching implications for other French museums who will now have to try and decide what can and cannot be shown, i.e. what appropriation art might be considered to breach copyright laws. Ironically, shortly after the initial decision in favour of Davidovici, Elisabeth Bonamy, the art director who conceived and executed the visual elements of the ad, said her role had never been properly credited or acknowledged. “Frank has always taken advantage to make his name famous while completely forgetting me. It’s not very elegant,” she told Artnet News. As an artist Koons’ has, undisputedly, had an impact on the development of “fair use” law, and it’s quite possible that multiple lawsuits have had an impact on his process. When the artist unveiled his Seated Ballerina (2017) at the Rockefeller Center, critics were quick to point out that it was virtually identical to sculpture by the Ukrainian artist Oksana Zhnikrup (1931-1993); a spokeswoman for Jeff Koons LLC was quick to point out that the Rockefeller Center sculpture was created with “a license to use” Zhnikrup’s work.