Out With the Wash: Fair Use in the World of Manipulation-Based Art

by Jordan S. Paul

On April 20, 2012, the Estate of James J. Marshall sued artist Thierry Guetta (and Google) for copyright infringement for his unauthorized and unlicensed use of Marshall’s “iconic photographs of celebrated popular musical performers.”   Marshall, who died in 2010, was a world-renowned photographer, famous for his portraits of musicians such as John Coltrane, Sonny Rollins, Thelonious Monk, Dizzy Gillespie, Brian Jones, and Jimi Hendrix, to name only a few.

Guetta, better known by his graffiti handle “Mr. Brainwash,” is an artist who creates manipulation-based art by altering existing photos and images.  He first gained dubious notoriety for his central role in the mockumentary film Exit Through the Gift Shop.  By most accounts, Exit Through the Gift Shop was a satirical prank produced and directed by Banksy, the legendary street artist whose poignant stencil art has popped up on city walls from Los Angeles to London to the West Bank.  Although Guetta was the central focus of the mockumentary, the movie frequently questions his artistic merit and authenticity in what most have described as Banksy’s intent to criticize the naïveté of the art community.

Artistic commentary aside, Exit Through the Gift Shop has made Guetta a commercially successful artist.  Since the release of the film, Guetta’s pieces and installations have sold for upwards of $100,000.  He was even been hired to produce art for the Red Hot Chili Peppers’ for a guerilla marketing campaign for their most recent album.  Problematically for Guetta, most of his best-known and lucrative pieces incorporate large portions of other artists’ copyrighted works.

In 2009, photographer Glen E. Friedman sued Guetta in the Central District of California, alleging that Guetta had infringed on his photograph of Run DMC by incorporating the image into art-work, t-shirts, and postcards.  Guetta raised fair use as a defense, but after evaluating the two works in the context of the four fair use factors, Judge  Dean Pregerson found no transformative use and granted summary judgment in favor of Friedman.  Judge Pregerson held that “[t]o permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act.  Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work.”

This ruling was of particular importance and interest because it resolved issues identical to those in the much more well-known Shepard Fairey copyright infringement case involving a portrait of President Obama.  Because that case settled, the courts did not have the chance to establish a precedent regarding this type of fair use.

In the case of Marshall vs. Guetta, Guetta’s works appear to have the same level of artistic deviation from the original Marshall photographs as they did from the Friedman photographs in the Run DMC case, suggesting that Guetta will again lose on summary judgment.  However, some of Guetta’s works that are based on Marshall’s photographs may incorporate words that could be construed as commentary on the original works, which would weigh in favor of a finding of transformative use.  To complicate matters further, it is unclear whether or not Guetta actually sold any of the works he created based on the Marshall photographs, or if he just used them for promotional purposes.  While this issue would not necessarily affect the liability determination, it might limit the damages available to Marshall.

The sharing and manipulation of art and photography have become staples of today’s social-media-based digital communications.  In the last few months alone, we have seen the rise in popularity of Pinterest and the billion dollar acquisition of Instagram by Facebook.  Interestingly, as the value, proliferation, and ease of photography and photographic manipulation increase, courts seem to be providing greater protections to the original artists and cutting back on the scope of fair use.  As this trend grows, so will the legal issues that accompany it.

Jordan Paul is an attorney with Robins, Kaplan, Miller & Ciresi L.L.P. where his practice focuses on intellectual property and complex commercial matters, with an emphasis on copyright infringement and contract disputes in the entertainment industry.



Filed under Copyrights, Internet Law, Technology

4 responses to “Out With the Wash: Fair Use in the World of Manipulation-Based Art

  1. “For my friends, everything. For my enemies, the law.”

    I’d like to see Pinterest, Tumblr, and rather a lot of unattributed use by powerful institutions get the same scrutiny as individual artists. Generally, this doesn’t happen, because it risks creating a real movement to reform copyrights to legalize sharing culture. Or at least go back to what the founders considered fair: 7 to 14 year copyright terms.

  2. I haven’t had as much time as I would like (studying for the Bar) to review the Prince v. Cariou decision, which contains facts similar to those involving Mr. Brainwash. However, I would be curious to consider how the outcome in that dispute is different from or similar to what is occurring above.

    I often find “fair use” to be a somewhat clumsy and post hoc response to claims of copyright infringement. I almost get the sense that many people are trying to use it to fill in what may be a huge a gap in copyright law: dealing with appropriation art and sampling. It may be true that copyright law fails to acknowledge contemporary creative processes, but I am not sure that fair use is the remedy that many people think it is.

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