On 9 March, the High Court of Paris (Tribunal du Grand Instance) ruled that the 1988 sculpture Naked by Jeff Koons—a porcelain work, over 1-metre tall, depicting a young nude boy and girl—plaigiarised Enfants (children), a 1975 photograph by the French photographer Jean-François Bauret, who died in 2014. The court has ordered the company Jeff Koons LLC, which is run by the artist, and the Centre Pompidou to each pay €20,000 to the heirs of the photographer for infringement on the heritage and moral rights attached to the original work. Jeff Koons LLC has also been ordered to pay €4,000, due to the reproduction of the sculpture Naked on its website.
The low sum of the damages may seem surprising, particularly considering the prices that editions of the work have fetched. One sold for $9m at Sotheby’s New York in May 2008, while another fetched $5.8m at Sotheby’s New York last May. However, this case only applied to the reproduction of the work in the exhibition catalogue, since no physical edition of the work has travelled to France to fall under the jurisdiction of the country’s courts.
After upholding the originality of the work by Bauret in terms of his artistic choices—determining that the photograph bore the imprint of his personality in aspects such as the subject matter, staging and framing—the court looked at the appropriation of these choices in Koons’s work, pointing to details like the children’s haircuts and smiles.
The court argued that Koons deliberately incorporated components of Bauret’s photograph
in the sculpture, making it a composite work, which could only be made with the agreement of the author of the pre-existing work. In its ruling, the court acknowledged the need for balance between “intellectual property and freedom of expression… considered two fundamental rights of equal eminence”, but ruled that Koons failed to justify his need to use the image without Bauret’s authorisation.