Thierry "Mr. Brainwash" Guetta loses copyright case with photographer Glen E. Friedman

(Above Left: Photo of Run D.M.C., taken by Glen E. Friedman Above Right: The invitation which Thierry Guetta, aka Mr. Brainwash, used for his debut exhibition 'Life Is Beautiful'.)

Thierry Guetta, the figure at the center of the Banksy documentary Exit Through the Gift Shop, just lost a court case which could result in significant damages.

Sean Bonner broke the initial news of the legal dispute here on Boing Boing, in a guest blog post this January.

From the Melrose and Fairfax art blog:

A judge just ruled against Mr. Brainwash in a lawsuit from photographer Glen E. Friedman claiming that MBW used his iconic photo of Run D.M.C. without permission. Mr. Brainwash had argued that the photo had been altered sufficiently and could be used under the 'fair use act'. But the judge disagreed, and, MBW's haters will be excited to hear that the judge "ruled that Guetta can't defend his work as transformative fair use."

The Hollywood Reporter has the full story, and covered earlier news of the dispute here.

More at the UK Guardian, and Thomas Hawk's photography blog, and at photoattorney.com.

Some will ask how this case is different from that of the Associated Press and Shepard Fairey, over Fairey's iconic Obama poster. Some context: Fairey is a creative collaborator and friend of Friedman, and Bonner, and crossed paths with Guetta, as those of you who saw "Gift Shop" will recall. Sean Bonner covered that question here in detail, in a previous Boing Boing guest blog post.

• [scifijazznik]

  Good.

• [sirkowski]

  Tracers gonna trace.

  • [knoxblox]

    ROFL! Can I use that?

• [Anonymous]

  Who is Run DMC?

• [Anonymous]

  Thierry is NOT an artist. He doesn’t even do the work, he just hired a bunch of people to do art for him. And to call it “art” is insulting to real artists out there who actually have something to contribute. This guy just wants to make money off of someone else’s actual creativity and talent. So I’m glad he lost.

• [Anonymous]

  Should have put “après Glen E. Friedman” with the work.

• [MrJM]

  When infringement is outlawed,
  only outlaws will infringe.

• [Dewi Morgan]

  This makes an interesting cross-eyed stereogram. The wall recedes into the distance, the figures are brought forward.

  And viewing it so draws out just how this is not “transformative art”: it’s an *exact* 1:1 copy, with a one-click reduction to two colors, and a drip effect.

• [Zadaz]

  This pretty obviously fails the “transformative” part. Every good hack knows to at least mirror the image.

  It’s a real shame seeing all the grossly misinformed comments in this thread. Predictable, but a shame. Anyone who creates (or blatantly rips off) anything seriously needs to familiarize themselves with copyright.

  Just because you don’t agree with it doesn’t mean you won’t loose a court case. If you really feel that strongly help get the laws changed.

• [Anonymous]

  Copying Is Not Theft –

  http://youtu.be/IeTybKL1pM4

• [Brainspore]

  My theory is that Banksy and Guetta planned this outcome from the beginning as a form of meta-meta-meta satire.

  • [Anonymous]

    Exactly! MBW is a Banksy piece.

    • [Xeni Jardin]

      Seriously, he is not.

      • [Jack]

        He is a street art “Zelig” though.

      • [Brainspore]

        I don’t really believe for a minute that Guetta’s existence (or for that matter most of the content in “Exit Through the Gift Shop”) was faked in any way. But I still do have a sneaking suspicion that Guetta’s meteoric rise to fame detailed at the end of the film was purposely orchestrated by Fairey and Banksy to see if they could make a superstar out of a mediocre-at-best street artist soley through the power of hype.

        Then again it could have all happened exactly as presented. I actually kind of enjoy not knowing.

• [Jerry Vandesic]

  I’m not all that surprised by this. In the 1992 case Rogers v. Koons which had similar themes, the second circuit court of appeals found for the photographer. In the Guetta case, it appears that the Run DMC photo had even less transformative work done to it than the puppy photo in the Koons case, so it was proably an easy decision for the court.

  More info on Rogers v Koons: http://en.wikipedia.org/wiki/Rogers_v._Koons

• [Anonymous]

  court docs or it didn’t happen

• [historyman68]

  Also, his bodily fluids have been replaced almost entirely with glue.

• [Jack]

  Given how hacky Mr. Brainwash’s work is, it’s pretty easy to see how he lost. I mean, if I had a say in it I would say, “Look, let’s take this Run-D.M.C. photo and change the heads to be Mickey, Goofy and Donald!”

  Or better yet, make all of the faces… SKULLS!

  That Mr. Brainwash… Soooooo edgy!

• [james4765]

  And that’s why almost *everyone* *else* who did this stuff stayed underground – once you start making a pile of money off your appropriations, the lawyers come around. It’s his own damn fault for making a big target out of himself.

  Never mind the moral arguments about re-using someone else’s work – if you’re going to charge for it, clear it. If you’re going to make money jacking the style of another artist, share and share alike. Work done for free and released on the Internet is in an entirely different category than producing salable items, and making money off of infringing works makes the argument of “free culture” ring a little hollow.

  At the same time, seeing the hubris in Exit Through The Gift Shop, I find myself amused but unsurprised.

  • [travtastic]

    making money off of infringing works makes the argument of “free culture” ring a little hollow.

    This times a million!

  • [Church]

    “… making money off of infringing works makes the argument of “free culture” ring a little hollow.”

    Free as in speech, not free as in beer.

    • [egojab]

      “Free as in speech, not free as in beer.”

      This is, frankly, a bit stupid.
      It’s a cop out statement to defend clearly poor behavior.
      Free culture isn’t just free “as in speech”, the whole idea of the movement is the freedom to create and distribute the creative works as free “as in beer” content. Not make money off of being an unoriginal hack.

      • [Church]

        Restricting culture is restricting expression, not scarce goods. So, speech not beer.

• [doingdoing]

  I have to say this all has me a little confused, right down to the connections between Glen E. Friedman,Shepard Fairey, and Thierry Guetta
  Glen became famous(and wealthy) for shooting the likenesses of punks, skateboarders and rappers a cross section of the outcasts…and he is good friends with Shepard Fairey, an iconic artist that has been battling copyright fair use shenanigans, who just so happened to be a friend/ major character influence to Thierry Guettta(as documented on Exit through…) and I believe he loaned his crew and services to MBW to produce his “art” for the gallery show in LA where the Run DMC image was revealed…
  So you are telling me with all this movie making and art showing, print making no one talked over the use of Glens Run DMC image with a lawyer? or Glen? and he’s not being reasonable about it? Is Glen really that rigid about someone using a screenprint of an old image of a rap group? Suing for millions on a photoshoop, and he’s friends with Shepard Fairey? Something doesn’t quite add up…right?

• [knoxblox]

  As an artist who straddles the representational/contemporary art line, I still think many young “artists” these days could benefit from a few life drawing classes.

  Even some of the best graffiti artists out there didn’t just decide to pull an awesome work out of their butt one day. They too, had to put in their 10,000 hours (or thereabouts) of practice.

  Not feeling much sympathy for Mr. Brainwash here.

• [Tdawwg]

  How was “iconic” determined? That’s hardly one of the indispensable photos of the twentieth century, by most standards. Not all images of icons are themselves iconic. Would love to be able to read the arguments on that point.

  Also, he used the image as an invitation, and only as an invitation, if I’m reading that all correctly. I’d always though in copyright–fair use issues the scope and currency of the derivative work was paramount: that if the derivative work couldn’t be said to compete with the original, if it didn’t threaten its place in the market, seek to supplant it, etc., then it was fine, regardless of how close to the original it is. Thanks to Guetta, BB has posted the original, where it meets with my approving gaze: thus the copy increases the value of the original, gives it further life, and doesn’t detract from it. Quite confusing!

  Sad to see the laws being applied in such a draconian fashion.

  • [aalleexx]

    I wouldn’t say that whether a derivative work competes with the original is the most important factor in the law. In fact, I don’t think it has nearly as large of a consideration as is thought. The amount of transportation is much more instrumental in deciding if a work is fair use or not. This is tangentially seen in Campbell v. Acuff Rose (the 2 Live Crew “Pretty Woman” case).

    More important is the amount of transformation that is made – more so than whether the work is for a profit or would compete with the original. MBW just made a stencil of a famous photo and spraypainted over it. That is changing the medium, but nothing else. This case is a lot like Rogers v. Koons, in which a sculptor took a photo and sculpted it with a few changes. The sculptor lost.

    I don’t think that this is a draconian decision. Fair use is the idea of building upon others’ works, making your own statement in addition to the original. MBW didn’t do that. That was exactly Banksy’s point in the film – that MBW was not original and was bastardizing the art.

    • [Tdawwg]

      Mmmmn, dunno about that. Cf. a similar, but not parallel, case with the New Kids on the Block suing over the use of their name in a newspaper poll: http://cyber.law.harvard.edu/metaschool/fisher/integrity/Links/Cases/newkids.html

      IANAL, but aside from the issue of using a trademark or copyrighted image to reference a different product (here, Guetta’s show) rather than to the trademarked or copyrighted product (as in the New Kids’ case), the issues would seem to be similar, and I’d have to side with the thumpingly good common sense of the judge in the case:

      The copyright holder has a property interest in preventing others from reaping the fruits of his labor, not in preventing the authors and thinkers of the future from making use of, or building upon, his advances. The process of creation is often an incremental one, and advances building on past developments are far more common than radical new concepts. . . . Where the infringement is small in relation to the new work created, the fair user is profiting largely from his own creative efforts rather than free-riding on another’s work. A prohibition on all copying whatsoever would stifle the free flow of ideas without serving any legitimate interest of the copyright holder.

      I’d strongly disagree with your contention that the scope and currency of the derivative work aren’t crucial: both common sense and the law (as far as I can determine either, lol) would seem to disagree with you as well. It’s a gallery invitation, cannot be said to compete with the original photograph, its millions of reproductions in the mediasphere, etc.: indeed, as I’ve proved, it’s providing further exposure for the original. And it was indeed transformative (new medium, new image), and thus can’t be reasonably be said to have constituted infringement, or, at worst, constituted a “small” one.

      I’m still wondering what the relative fame or not has to do with the decision: it seems to be part of your argument and to have been part of the decision, and this is troubling to me.