June 07, 2011 3:45pm PT by Eriq Gardner
Artist at Center of Oscar-Nominated Documentary Loses Copyright Case (Exclusive)
The Oscar-nominated documentary Exit from the Gift Shop detailed the incredible rise of Thierry Guetta from an amateur documentarian to an art world sensation known as "Mr. Brainwash." But now Guetta, whose work has set off a number of debates about the nature of originality in art, is in serious legal jeopardy thanks to a California federal judge who has determined that Guetta's work on one of his showcase pieces -- a manipulated image of the iconic rap group, Run DMC -- was outside the bounds of copyright law.
We first broke news about this lawsuit back in January. At the time, Exit from the Gift Shop had just been nominated for an Academy Award, but questions continued to swirl over whether the documentary was some form of hoax by its director, Banksy, a legendary street artist and notorious prankster. This suit seemed to at least settle any question that Guetta's work was indeed his own.
Unfortunately for Guetta, that also meant that he had to contend with Glen E. Friedman, a high-profile artist in his own right, who is most notable for his photography of rebellious musicians, including Run DMC.
Last year, Friedman sued Guetta for using his Run DMC photograph -- which has been called the most famous photo of Run DMC that exists -- without permission.
The nature of the dispute immediately set it up to be an alternative version of The Associated Press' fight against Shepard Fairey for using one of the news agency's copyrighted photographs to create the famous Barack Obama "Hope" image. That lawsuit settled before any judicial determination of whether Fairey had a "fair use" right to transform the photograph. Meanwhile, the Friedman vs. Guetta dispute continued.
Like Fairey, Guetta had obtained the photograph via the Internet. There was no indication of copyright on the photograph, and Guetta maintained that he wasn't aware that the Run DMC photograph had been previously published in a book. Instead, Guetta altered the photo and projected it onto a large piece of wood, painted the image on the wood, and glued 1,000 pieces of phonograph records onto the wood. The resulting artwork was displayed and used to advertise Mr. Brainwash's "Life is Beautiful" installation in Los Angeles, which becomes the dramatic turning point in Exit from the Gift Shop.
Guetta argued that the Run DMC photograph wasn't original enough to deserve copyright protection. Although it's widely hailed by photography buffs as being influential, Guetta's lawyers argued that Run-DMC's pose in the picture -- the "B-Boy Stance" -- was already in the public domain. Additionally, Guetta argued there were many photographs of Run-DMC from the 1980's that were similar, including the style of clothing, pose, demeanor and background.
But California federal judge Dean Pregerson doesn't buy that argument, saying that Friedman's decisions about light and shadow, image clarity, depth of field, spatial relationships and graininess were "artistic decisions cummutatively" resulting in a photograph with copyright protectable elements. Further, the judge finds enough substantial similarity between Friedman's photograph and Guetta's art for a copyright infringement claim.
Just as importantly, Judge Pregerson has ruled that Guetta can't defend his work as transformative fair use.
The judge examines the four factors of the fair use test, including (1) the purpose and character of use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work, and determines that Guetta can't satisfy his burden in establishing this defense.
"To 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," concludes Judge Pregerson. "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."
Judge Pregerson grants Friedman's motion for summary judgment, which means the case moves onto determining what damages Guetta owes.
This decision, along with another in New York court last March over paintings made by the American artist Richard Prince that appropriated copyrighted photographs, might be the beginning of a massive limiting of the fair use defense enjoyed by artists to copyright claims. One has to wonder whether Andy Warhol would have survived litigation and whether documentary and music "re-mixers" have any safe ground from liability today.