Jeff Koons’ Serpents Burrows Into the Market as Italian Supreme Court Rules That Public Display of a Work Amounts to “First Publication”

Thanks to Benedetta Pelizzari for collaborating on this article

In its decision of August 7, 2023, No. 23935, the Italian Supreme Court of Cassation confirmed that an author’s work can be deemed “published” under the meaning of Article 12, Law No. 633 of 1941 (“Copyright Law”) as a result of its public display at an exhibition. “First publication” does not equate to “sale,” meaning a work disclosed by an author as their own shall be free to circulate thereafter, without the author being able to prevent or limit such circulation after the transfer of usage rights to other parties.

BACKGROUND

In 1991, an Italian collector purchased a porcelain artwork called Serpents, attributed to famous artist Jeff Koons. However, Koons refused to acknowledge the work as his own, and as a result the collector’s attempts to sell it in 1997, 2007, and 2009 were all unsuccessful. Finally, in 2014 during a gallery exhibition held by Koons himself, the collector again tried to sell the artwork as an authentic Koons and received an offer of 1.6 million euros. But when the bidder contacted Koons to verify the authenticity of the work they were about to purchase, Koons replied through a proxy that the artwork was an unsatisfactory prototype that should have been destroyed, and therefore was not an authorized or authentic work of his.

In 2016, the collector—left with Serpents—filed a lawsuit before the Court of Milan seeking damages from Koons, his company, and his proxy. The collector claimed that their conduct prevented the sale of the artwork in question. The defendants dismissed those claims, and Koons filed a counterclaim seeking damages for unlawful circulation of the work, which he alleged was placed on the market without his knowledge or authorization, and therefore improperly presented by the collector as an authentic, approved, and authorized work when, in fact, it was not. Koons also sought the restitution or destruction of the artwork.

The Court of Milan dismissed the main claims against Koons as time-barred, and also dismissed the counterclaims brought by Koons.

Both parties appealed the decision before the Court of Appeals of Milan, which rejected the appeal brought by Koons and upheld the cross-appeal brought by the collector, declaring that the artwork was a lawful, authentic artwork by Koons and ordering the artist to pay damages.

THE FINDINGS OF THE SUPREME COURT OF CASSATION

Koons contested the decision before the Supreme Court of Cassation, where his claim was definitively ruled out and the lower court’s decision was upheld. The Supreme Court confirmed that the Court of Appeals correctly interpreted and applied Article 12 of the Copyright Law, and it took the opportunity to focus on the notion of an author’s exclusive right to the use of a work and the closely related right of “first publication” of the work.

As the Supreme Court noted, case law has consistently found that when a work has been displayed in an exhibition or artistic exposition open to the public (and not reserved for a select few), it must be considered “published” under the meaning of Article 12 of the Copyright Law. Indeed, the Supreme Court rejected the notion that the sole utilization considered economically relevant for the purposes of Article 12 is the sale of a work, on the grounds that a similar stance would significantly curtail an author’s rights and run counter to the fundamental principles safeguarded by the Copyright Law. The law is designed to provide authors with the widest possible scope for economic exploitation of their creations.

Indeed, the Supreme Court argued that arranging a public display of a work, such as in a museum, is the most common way of “publishing” the work and is typically how authors first present their work to the public and introduce it to the community and the art world. Ultimately, they acquire artistic authorship through such “publication.”

On this basis, the Supreme Court rejected the concept that the first “use” of a work could not include its exhibition in public in shows and museums, considering that this mode of presentation constitutes the external manifestation of authorship of an artistic work. Therefore, it also constitutes economic use of the work, particularly due to the publicity associated with an exhibition targeted to the art-world audience.

Moreover, the Supreme Court argued that the profit motive behind displaying work in an exhibition or a gallery, typically in the hopes of a subsequent sale (and in any case in a bid to render an effect on image and engage in promotions that target potential interested collectors), is beyond dispute.

CONCLUSIONS

The decision of the Supreme Court confirms that under Article 12 of the Copyright Law, the first publication of an artistic work, through its economic utilization, does not necessarily coincide with the transfer of the work to third parties in exchange for payment. It can occur through various other methods by which the author expresses their intent to claim authorship of the artwork and introduce it into the artistic sphere, such as exhibiting it in shows and museums open to the public. Subsequently, the Supreme Court concluded that once a work has been created, authorized, and “published” by the author—including by means of its public display—the work in question is destined to circulate through economic use and in the legal sphere of the author’s third-party assignees. The author cannot inhibit such circulation after the rights have been transferred to other parties.