Fair Use Fails Mr. Brainwash: Judicial Stance on Infringement and Appropriation Art Swings the Other Way

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Hot on the heels of appropriation artist Richard Prince’s victory in the Second Circuit (covered here two weeks ago), a Los Angeles federal court has returned a less favorable ruling for appropriation and street artist Thierry Guetta, better known as Mr. Brainwash. Last week, district court judge John A. Kronstadt ruled that seven of Guetta’s works, based on photographer Dennis Morris’ iconic 1977 picture of Sid Vicious, deceased lead singer of punk rock group The Sex Pistols, was not protected by fair use, continuing a lack of predictability for future infringement cases  involving appropriation art.

Guetta is a street artist whose works typically appropriate well-known images of celebrities. He and his work were featured in Exit Through the Gift Shop, a documentary film by famed street artist Banksy. His works have fetched high prices at auction houses such as Philips de Pury since 2010 and in 2009 he designed the cover of Madonna’s Celebration album. Since 2004, Guetta has used Morris’ original photograph in at least seven works, including a large mural in La Brea in Los Angeles, a work made with broken vinyl records, and works that add a mole onto Sid’s face and overlay blonde hair and splatters of paint.

In the present case, Guetta argued that his works should be protected by fair use because they are transformative and that his intentions in creating them differed from those of the photographer. In his declaration, Guetta stated: “I created the mural (with color) in particular because it was larger than life, like Sid Vicious, and I wanted to give him the respect it seemed like he did not get in life.” He also called it a “commentary on Sid Vicious’s persona and on the nature celebrity generally.” With a favorable outcome for the appropriation artist in Cariou v. Prince, a closely-watched copyright case in the Second Circuit decided two weeks ago involving Richard Prince’s successful use of the fair use defense against infringement claims brought by photographer Patrick Cariou, Guetta was likely hopeful that the win signalled a positive outcome for him as well.

Unfortunately for the street artist, Judge Kronstadt rejected Guetta’s fair use claim and arguments. The opinion states: “An independent review of Defendants’ works shows that they are not sufficiently transformative… The Photograph is a picture of Sid Vicious making a distinct facial expression. Defendants’ works are of Sid Vicious making that same expression. Most of the Defendants’ works add certain new elements, but the overall effect of each is not transformative; Defendants’ works remain at their core pictures of Sid Vicious.” Kronstadt also clarified that “[t]here must be some showing that a challenged work is a commentary on the copyrighted one, or that the person who created the challenged work had a justification for using the protected work as a means of making an artistic expression.” Kronstadt characterized Guetta’s arguments as effectively arguing that appropriation art should be considered per se fair use. To this, he responded: “To permit one artist the right to use without consequence the original creative and copyright work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act.”

Guetta is no stranger to courtroom losses. In 2011, he lost a copyright case to Glen Friedman, another photographer who photographed the rap group Run DMC in 1985. Guetta is currently involved in another lawsuit with the estate of photographer Jim Marshall, who sued the artist and Google last year for the unauthorized use of Marshall’s photographs of musicians. The trial is set for July.

Does the current legal landscape regarding fair use and appropriation art provide any lessons for Mr. Brainwash (or his lawyers) for his upcoming trial? The current ruling seems to suggest that some “commentary or justification” is required for a work to be transformative, while the rulings of Cariou v. Prince and Blanche v. Koons (both cases involving successful fair use arguments by appropriation artists) suggest that fair use does not necessarily need to comment on the original image. Perhaps success for Guetta (and other appropriation artists) lies in changing the focus of his arguments. Cat Weaver, writing for Hyperallergic, suggests that Guetta would have more luck arguing that his work is parodying street art, an undertaking which requires “recognizable pop imagery to signify the way these sorts of images are used in street art.”

One thing is certain: the line dividing a fair use from an infringing use in appropriation art–a medium defined by borrowing original from other sources–is likely to remain fuzzy and unpredictable for the foreseeable future.

For more on legal issues in street art, see our previous posts: Who Owns Street Art? and UNESCO Forced to Consider Street Art As Cultural Heritage

Sources: The Art Newspaper, Photo District News, Phaidon

One thought on “Fair Use Fails Mr. Brainwash: Judicial Stance on Infringement and Appropriation Art Swings the Other Way

    Fair Use, Schmair Use – Stop and Read | SoLoMo Law said:
    August 23, 2013 at 7:34 am

    […] There are other arguments to be made, as well.  You can argue that your use does not hurt the market for the original.  If your business is commentary or humor, you can argue that your use is just that.  You can argue that it is a parody of the original.  You can argue that the use is satirical.  You can even argue that the use is transformative.  At the end of the day, they are only arguments.  If you hear from a lawyer that “that is fair use,” you need to translate that to “that is probably fair use.”  What they are doing is formulating a fair use argument, not telling you it is or is not.  Though the nice thing about a lawyer telling you that is that you can point the finger at him when you end up in a plight like Mr. Brainwash. […]

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