🇬🇧 - A revolution in French copyright law or the right of author to test freedom of expression
As a matter of principle, the French judge must now balance the interests of the author of the original work with those of the third party who appropriates the work, at the risk of having to tolerate counterfeiting.
In accordance with the instructions given by the European Court of Human Rights on 10 January 2013 in Case C-0669 Ashby Donald and Others v. France” - the French judge is required to appreciate the restrictions brought to freedom of expression by the author's rights in the light of their necessity “in a democratic society”, as prescribed in article 10 of the European Convention of Human Rights.
It was, moreover, to impose this reasoning that the Court of Cassation, in a judgement of 2015, censuring a decision of the Court of Appeal reached in their judgement in the case of Peter Klasen v. Alix Malka. The latter had merely reviewed the legal exceptions to the monopoly on the author's exploitation of his work, instead of actually balancing the fundamental rights at issue on the basis of factual evidence. While some saw the advent of an "open system" in which "freedom of expression and creation was outside the narrow framework" of copyright, many considered the Court of Cassation "opened the Pandora's box of fundamental freedoms in copyright".
However, this new trend encounters resistances among trial judges, who do not appear ready to abandon their traditional reasoning, which is particularly protective of the author. The judgement rendered on March 9, 2017 by the Paris Court of First Instance ("TGI") which condemned Jeff KOONS after the latter had appropriated the work of a French artist, is the perfect example.
In this case, the famous American artist Jeff Koons was accused by the widow of the photographer Jean-François Bauret of having plagiarized his work "Enfants" in a statue entitled "Naked" realized in 1988. A copy of it was to be exhibited in Beaubourg as part of a retrospective of Jeff Koon’s' works in 2014.
The applicant therefore sought the conviction in solidum of JEFF KOONS, the company of which the artist himself is manager, and of the Centre Pompidou.
The photograph from 1970, unknown to the general public but published in the form of a postcard in 1975, depicts two young naked children, a little boy and a little girl, holding hands, a symbol of innocence and purity. In contrast, the statue depicts two naked children in the kitch style, one of which holds a pistil "phallic in shape".
Despite this addition, the resemblance is blatant and the judge recalls that freedom of expression, even if it is at the service of art, cannot systematically justify the restrictions on the monopoly of the holder of the rights (I). As for the application of the balancing of interests by the judge, it is carried out here to the detriment of the Appropriationist art, a growing artistic current, of which Jeff Koons is the leader (II).
I. Jeff Koons faces the limits of his own freedom of expression
In this decision, the judge determined that this was an instance of counterfeiting by noting that the defendants did not even dispute that Jeff Koons was directly inspired by the photograph and then successively rejects the argument for parody and freedom of expression.
The judge considered the argument for parody and reached his decision in respect of the “DECKMY” ECJ decision . However, and according to the judgement, since in the present case the artist had never mentioned the link with the photographer's work before the case and the work alleged to have been parodied was unknown to the general public, it is impossible for this exception ground to be upheld.
The reasoning pursued by the judge in respect of the plea based on freedom of expression under article 10 of the European Convention of Human Rights is particularly interesting.
Initially, the judge ruled that the work is a composite, a qualification on which is based the arguments of the defendants, who invoke freedom of expression for Jeff Koons, stressing he could "lawfully appropriate components of the photograph for creative purposes, to transform it into a new and independent work" Naked"and give a new meaning to the children." In the same way, citations of the Malka  and Ashby judgements mentioned earlier, as well as references to the American defence of "fair use" or even of the Appropriationist artistic movement smother this argument.
Then, subsequently, the Court, while acknowledging the practices of Jeff Koons, who has long used "ready-made" objects, in the tradition of Marcel Duchamp, refuses to recognize the benefit of freedom of expression in the case at hand.
The judge eventually explains his refusal, stating that 'the artist chose to include the photograph of the children in full without explicit reference to the picture that is not familiar to the public' and ' without explaining why he could not do otherwise", thus "saving creative effort, which could not have be done without the permission of the author '.
Therefore, the freedom of expression of the Appropriationist artists appears extremely fragile.
II. Is Appropriationist art in danger?
As in the Malka judgement, the judge is here implementing the mechanism known as "the balance of interests" in the present case, to determine whose interests should prevail; the copyright on Jean-François Bauret's photograph or Jeff Koons' freedom of artistic expression.
However, in order to apply the right to freedom of expression against the copyright, the defendants are reliant of the argument that the work is an example of Appropriationist art.
This is an artistic trend that started with the "ready-made" works of Duchamp and which reached its peak in the early 1980s in the United States. It is characterized by the use of already existing objects, images, and even works of art.
Jeff Koons is one of the iconic figures of this movement.
The TGI did not deny that the artist belongs to this movement, nor did it denigrate his art, ' notoriously taking inspiration for 35 years from images or existing objects, especially of American mass culture '.
The judge is not, however, fooled by the stratagem that would protect all work in the name of freedom of expression through the use of the term 'Appropriationist'. The concept of counterfeiting would become a hollow shell.
The judge further noted that 'knowledge by the public of the work in question is decisive for the effect produced on the audience and neccessary to the perception of the message of the artist to cause the spectator to reflect".
The argument is logical: The judgement finds that by using a portrait that was supposed to encapsulate purity and innocence to make a couple of children representing "the idea of the liberation of humanity from feelings of guilt, sin and shame", Jeff Koons is certainly working in the sphere of Appropriationist art, as mentioned in the introduction and an argument that the judge tends to follow. But, given that the public does not know original work and that the artist has done nothing to associate "Naked" to it in his mind, Jeff Koons cannot claim that his derivative work must be interpreted in the light of original work, and that therefore the use of it was necessary for the derived work.
The TGI deduces that Jeff Koons is therefore driven by self-interest, allowing him to save creative effort.
And concludes "the failure to justify the need for this representation of a couple of children for his artistic expression without the permission of the author, the implementation of the copyright of the applicants does not constitute disproportionate damage to the freedom of expression".
It is, however, appropriate to temper the solution adopted by the Paris TGI in respect of the effects of the Malka judgement.
Certainly, the sanction of counterfeit remains the principle and it is up to the counterfeiter to explain why the use of the original work and the transformation thereof are necessary to the realization and interpretation of the derived work in order to be able to claim freedom of expression.
However, Appropriationist art is not condemned to be sentenced, on the contrary.
This is only a first instance decision. In addition, we still await the final outcome of the Malka case, cited above.
Furthermore, a development is currently taking place in favour of the new so-called transformative uses to which Appropriationist works belong.
In any event, JEFF KOONS LLC and the Pompidou Centre have been found jointly liable and ordered to pay € 42,000 to the rights holders in respect of the damage suffered. It remains a fact that"saving creative effort" is profitable, one copy of the statue was sold in 2008 for the modest sum of $ 8 million...
 Judgement of the ECHR, 10 January 2013, Application No. 36769/08, Ashby Donald and Others v. France - endorsement of Article 10 of the European Convention on Human Rights  Judgement of the Court of Cassation, Civil Division 1, Appeal No. 13-27391, Peter Klasen v Alix Malka  https://scinfolex.com/2016/01/29/et-si-la-justice-francaise-sappretait-a-reconnaitre-un-droit-au-remix/  Christophe Caron, 'Copyright versus freedom of expression: the requirement of a' fair balance '', CEC 2015. comm. 55  Judgement delivered on 09 March 2017 by the Tribunal de Grande Instance, Paris, 3rd Chamber, 4th Section, No. RG: 15/01086  ECJ, Grand Chamber, Sept. 3. 2014, aff. C 201/13, John Deckmynand Vrijheidsfonds VZW vs. Helena Vandersteen et al.:JurisData no. 2014-022523  Judgement of the Court of Cassation, Civil Division 1, Appeal No. 13-27391, Peter Klasen v Alix Malka  Judgement of the ECHR, 10 January 2013, Application No. 36769/08, Ashby Donald and Others v. France Wkipedia, Appropriation (art), https://en.wikipedia.org/wiki/Appropriation _ (art)