Puppies, Penguins, and Plagiarism
American Pop artist Jeff Koons often makes headlines for his oversized sculptures, which make stainless steel look like shiny balloon animals; his most iconic work is a giant balloon form in the shape of a dog, and comes in an array of mirror-finish colors.
His works command high prices at auction: in 2013, his Balloon Dog (Orange) sculpture sold for $58.4 million, which set an auction record at the time for the most expensive artwork by a living artist—and his sculptures appear in public and private institutions across the globe.
Recently, a sculpture Koons proposed to honor victims of the 2015 and 2016 terror attacks in Paris—a hand clutching a bouquet of balloon tulips—was approved to be assembled in the gardens of the French capital’s Petit Palais.
His work, while lauded for being playful and providing a meaningful commentary on our material culture, is not without controversy. Some critics find his sculptures kitsch—even crass—though perhaps the most serious criticism that can now be leveled at Koons was handed down by the French legal system in 2018: plagiarism.
In a case that played out over four years, the artist was accused (and found guilty), by creative director Franck Davidovici, of copying a photograph he took for French clothing brand Naf Naf. The photograph features a woman lying in the snow being nuzzled by a pig, and appeared in a 1985 advertisement. In 1988, as part of his Banality series, Koons created a sculpture of a woman, lying in the snow, with a pig nuzzling her hair.
![naf-naf-clothing-advertisement-of-woman-and-pig(1).png](https://colossal-chubby-zipper.media.strapiapp.com/naf_naf_clothing_advertisement_of_woman_and_pig_1_1d35ebe5be.png)
The position of the woman’s hands were the same as in the original advertisement photo, as was the small brandy cask worn around the pig’s neck. The similarities did not end there: the raven-haired model featured in each piece bears the same expression, with a lock of hair placed in exactly the same spot against her cheek. Davidovici’s photograph ran as a double-page spread with the text “Fait d’Hiver”; Koons gave his artwork the same title.
The sculpture was purchased by the Prada Foundation in 2007 for more than $4 million, and was later exhibited at the 2011 Venice Biennale. Davidovici first saw the artwork in August of 2014, in the exhibition’s retrospective catalog of the artist’s work at Paris’s Centre Pompidou. He then sued for copyright infringement the following January.
The case languished in the French court system until 2018, when it was determined that Koons had indeed copied Davidovici’s original photograph, thus infringing on his copyright and intellectual property rights. Koons had argued that his “Fait d’Hiver” was substantially different from Davidovici’s photograph; the artist had added a wreath of flowers around the pig and two penguins standing on either side of it. He therefore postulated that any similarities could be chalked up to his “artistic expression,” and that his work was a parody of the original, which would constitute fair use under copyright law. In their ruling, the French court rejected Koons’s argument, stating that his sculpture had the same “very recognizable staging” as the photograph. Koons was ordered to pay Davidovici nearly $170,000.
This was not the first time that Koons had been found to be on the wrong side of copyright law, and not even the first sculpture from his Banality show to come under legal pressure. Photographer Art Rogers sued Koons in 1989 over his sculpture String of Puppies, a polychrome statue featuring a woman and a man sitting on a bench while holding a line of eight blue puppies. The sculpture bore striking resemblance to Rogers’ 1985 photograph of the same scene, Puppies. Koons sold three copies of String of Puppies by the time Rogers filed suit for copyright infringement, against both Koons and his gallery, Sonnabend in New York. Koons again claimed that his work was protected by the parody clause of fair use under copyright law.
![photo-of-two-people-holding-puppies.png](https://colossal-chubby-zipper.media.strapiapp.com/photo_of_two_people_holding_puppies_47ea957ef8.png)
Incriminatingly, Koons had sent faxes to the team responsible for the construction of String of Puppies that included the instructions: “keep as per photo form of puppies...work must be just like photo.” In 1990, the Federal District Court in Manhattan granted a summary judgment in favor of Rogers, and ordered Koons to pay damages of an undisclosed sum and turn over all remaining proofs of the sculpture. He appealed the verdict in the following year, though the appellate court upheld the District Court’s ruling and disregarded Koons’s assertion that String of Puppies was a parody of the original, writing: “It is not really the parody flag that appellants are flying under, but rather the flag of piracy.”
Also from Banality, Koons’s Wild Boy and Puppy sculpture was found to have been an infringement of Jim Davis’s lovable cartoon dog, Odie, from his Garfield comic strip. The courts ruled in Davis’s favor, following the precedent set by the aforementioned Rogers v. Koons case. “At best,” the court wrote, Koons’s Wild Boy sculpture was “a parody of society at large, rather than a parody of the copyrighted ‘Odie’ character.”
Koons was also sued over a sculpture, Pink Panther, which—as the rest of the sculptures in the show suggest—held remarkable similarities to a certain beloved magenta cartoon cat.
Koons has also been embroiled in lawsuits involving artworks outside of his “Banality” series. Aside from the original artists having their copyright protected, perhaps the most meaningful outcome is that each case has helped reshape copyright law’s application to art as a whole.