‘The Giacometti Variations’ by American conceptual artist John Baldessari is an original installation at the Fondazione Prada in Milan, Italy. As the name of the project states, Baldessari took influence from the imagery projected by the swiss sculptor, Alberto Giacometti. He has created nine, oversized female figures stretched to an extremely slender form. The 4.5-meter-tall sculptures (depicted above), made out of resin and steel then sprayed with bronze, were clothed in garments and objects also designed by Baldessari.

The result is an immobile snapshot of a fashion show, integrating the ideas of art and fashion on a dramatic, larger-than-life scale. In the words of the artist himself: “Giacometti figures are the most emaciated and skinny sculptures that exist. Why not push that further? There is currently a blurring of art and fashion. It is de rigueur that fashion models be extremely tall and thin.”

Giacometti was not happy however

However, it transpired, almost a decade ago, that the Giacometti Foundation applied for an injunction against the American artist in July 2011. The goal: to obtain an order enjoining him not to use the Grandes Femmes of Giacometti within the exhibition. They based the applcication on the author’s exclusive right to rework his work under copyright law. This right includes all forms of modification, processing and transformation of the work. Based on this rule, the author of the original has the right to forbid any appropriation of his creations.

Parody comes to the defence

The court ruled on the issue, that Baldessari’s intent to ‘spoof’ Giacometti’s works rendered ‘Variations’ at the Prada Foundation not harmful to the Italian artist’s moral rights. This in accordance with the ‘parody defence’, basing its reasoning on similar decisions in U.S American courts.

These had ruled on the fair use of works by other authors using the provisions of Section 107 of the U.S. Copyright Act: “Notwithstanding the provisions of sections 106 and 106A, fair use of a copyrighted work, including for example reproduction in copies or telephone recordings or by any other means specified by that section, for the purpose of criticism, review, information, teaching (including multiple copies for use in the classroom) , study or research, is not a violation of copyright “.

The spoofing test

On this basis, they developed a fourfold test in order to determine whether the use of a previous work constitutes fair use:

– the purpose and nature of the use, assessing wether it is commercial or non-profit/educational

– the nature of the authorial work,

– the quantity and importance of the part of the work used compared to the whole,

– the effect of use on the potential market or on the value of the work used.

Baldessari did not infringe

The Court of Milan considered the American artists version, concerning their dimensions, materials and form, to be virtually identical to Giacometti’s, while transforming the image of the Giacomettian woman dramatically. “His women derive their thinness not from the tragic hunger of the post-war period, but from the exacting demands of fashion.” per the Court.

In conclusion, Baldessari’s versions constituted not plagiarism but works of artistic merit whose exhibition must not be prohibited.

A piece of advice for artists who parody

The parody defence has its place in EU copyright law as well. In Art. 5 (3)(k) EU Copyright Directive of 2001, it is maintained that one doesn’t infringe on copyright if the work is parodied. The ECJ ruled a few years after the Giacometti case in “Deckmyn/Vrijheitsfonds” that the parody defence has to only meet two conditions, namely to “evoke an existing work while being noticeably different from it” and “to constitute an expression of humour or mockery”.

An artist who intends to spoof another artists work consequently doesn’t have to prove much, but that their humorous treatment of the other’s work is believable.

Sources:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=157281&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1588554

https://www.designboom.com/art/john-baldessari-the-giacometti-variations/

https://www.independent.co.uk/arts-entertainment/art/features/john-baldessaris-giacometti-variations-2120153.html

Image: designboom