Sneering and sniggering to the bank

Bauret’s widow was awarded a penalty payment of €44,000. That translates into US $46,937.88. Half of it, roughly, will cover her legal fees. That doesn’t compensate for seeing her husband’s endearing portrait of children turned into a sniggering, sexualized bit of American camp culture.

Ten months ago, Naked sold (or didn’t sell, to be more precise) for $5.7 million at Phillips’ 20th century and contemporary art sale in New York. When pressed on the subject, Phillips’ CEO Edward Dolman admitted that the porcelain sculpture went to the artwork’s third party guarantor. The fact that vast sums of money are exchanged for works nobody wants is the first hint that what we’re talking about here is fungibility, not creativity.

This is the fifth time Koons has been taken to court over his Banality series, which purports to show the dullness of the objects of our modern life by making equally dull, but really pricey, copies. In fact, the whole point is to sneer at the working and middle classes, who can’t afford to surround themselves with exquisite objects.

In 1989, photographer Art Rogers sued Koons for stealing an image for his sculpture “String of Puppies.” Koons was sued over the sculpture Wild Boy and Puppy, which was clearly a rip-off of Odie from Garfield.

Both times Koons claimed the fair use exemption by parody. Both times, he lost. The court held that he could have made his general statements about parody without copying those artists’ specific work.

Fashion photographer Andrea Blanch sued Koonsfor using an image entitled Silk Sandals by Gucci, published in Allure in 2000. There, Blanch lost because the courts held that he did not own the image copyright to the sandals themselves. The resulting work, Niagara, is also substantially different from the original photo.

French adman Franck Davidovici filed a counterfeiting lawsuit over the artist’s 1988 work Fait d’Hiver. According to Le Monde, the penalties, if Davidovici prevails, will be quite a bit higher than in the Buaret case. The plaintiff demands the sculpture itself, along with an additional €271,000 in damages. “Even if that the claim is only brought against the edition of Fait d’Hiver currently in France for the Pompidou show—there are three other copies—the total requested damages could theoretically stretch well into the millions,” wroteAlexander Forbes. He then went on to mention the issue that bedevils this all: that the works in question are no longer owned by Koons himself, but are being hustled on the aftermarket. They’re commodities.

Koons is an appropriation artist, so naturally he takes the broadest possible view of the fair use exemption. And appropriation art sells, which is why Koons gets millions for work of dubious intellectual and technical quality.

There is no consistent answer to the question of where artistic appropriation becomes copyright infringement. It sometimes seems to have mainly to do with which end of the stick you’re holding.

In 2011 Koons sent a cease-and-desist letter to a San Francisco store and gallery for selling balloon dog bookends. Attorney Jedediah Wakefield responded, “As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.” He then went on to skewer Koons as, “a retired stockbroker whose sculptures and other works are well-known for copying pre-existing forms and images from popular culture.”

Meanwhile, it is still unwise to appropriate another person’s photograph for your reference material. The Bauret case reinforces that. But if you’re thinking that the rich and famous get richer and more famous by flouting the law, I can’t argue with you.