If you haven’t seen the Oscar nominated documentary Exit Through The Gift Shop it’s well worth checking out and available to stream on Netflix. The film tells the story of Thierry Guetta AKA Mr. Brainwash a French appropriation artist who many believe is simply a made up character/actor created by British graffiti artist Banksy. The film also stars Shepard Fairey and goes into good detail on the history and rise of street art. What’s fascinating, if you read up on the hoax theory before watching the film, is that Banksy might have pulled off an elaborate modern “Emperor’s New Clothes” tale and certainly Guetta and to some degree the popularity of street art reads that way in the film.
Last week The Hollywood Reporter uncovered an ongoing lawsuit between photographer Glen E. Friedman and Guetta for his use of an iconic Run DMC image and THR draws parallels between the now settled AP vs. Fairey lawsuit. In an article for Boingboing (here) Sean Bonner explains why this use would not be considered “Fair Use” but the Fairey use would. It all hinges on the Friedman image being iconic where the Mannie Garcia image is thought of as “a random press image.” My problem with this perfectly logical argument is that you’re creating a new gray area for a type of use (fair) that is full of gray areas. At what point does an image become iconic or a clearer way of looking at it, at what point does it have value. Fairey admitted that he looked a thousands of images before settling on the perfect one (Garcia’s) so that indicates value. Any image an artist decides to use immediately has value, so in my opinion if an artist want’s fair use they need to transform it into something else or only use a small piece. Deciding if it has value is impossible and certainly not something we want the courts to decide. Visit the MOMA to see a blank canvas, ripped canvas and canned shit if you think otherwise.
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I would LOVE to hear what Darryl McDaniels thinks about this, especially the part where this “artist” sells an image of RUN DMC over and over again. Hopefully the group’s lawyers will be heard from on this soon.
Hmmmm… Banksy’s and Glen’s politics aren’t that far apart. And this, right during Oscar season…
Hmmmm…
@William Anthony, perhaps an attempt by Banksy to throw critics off his scent… especially with all the rumors that he was behind Mr. Brainwash and that Exit Through The Gift Shop was actually an elaborately staged mockumentary.
@David Drake, I think they’re all taking the piss out of the art world. And deservedly so. I wouldn’t be surprised to find out “Banksy” isn’t even a single person, but a crew.
The irony here is remarkable. An iconic image of the leaders of a movement that built its sound on samples of other artists work was infringed.
@scott Rex Ely, true, but I think recording artists pay royalties on samples, don’t they?
@Jim Newberry, Here is a great article I found on clearances for music usage, This is the money quote for me which I think helps explain the 2-d image fair use situation where we are now.
“Clearing samples was thus generally based on an assessment of the law as it was at the time in combination with a cost-risk analysis – that is, guessing what the potential cost of not clearing any particular sample might be. Lawyers well knew that there was a line to be drawn between a fair appropriation (whether sampled or interpolated) and infringement, but no one knew exactly where that line would ultimately be drawn.”
Article retrieved from the internet:
http://www.clearance13-8.com/AShortClearanceHistory.htm
I’m also reading what is proving to be a great resource on the conflict between Copyright law and freedom of expression:
“Copyright’s Paradox” by Neil Weinstock Netanel
Oxford Press, New York, NY
ISBN#978-0-19-513762-0
Thanks to Rob for posting this article. Lots to chew on.
Wasn’t Glen defending Fairey during his trial?
i wonder if Run DMC were paid for the shoot.
and well,.. the photographer get ofended, and sued the guy. Up to him, but remember, no one dies for getting ofended, it´s not a big deal, let´s grow and accept the offenses of modern life.
You get ofended, so you get angry, you sue, but that´s it.
It´s done, you can´t change it now.
Oh, i forgot is all about the money!!
@J.D.,
this link illustrates what i mean in some way.
But it might be fair use since the ‘artist’ did change the work somewhat.
He left off the copyright in the original.
[…] photo, was selling the copies and making money of it? Better yet representing the image as his own? READ HERE. What would you do? Do you feel it is right or okay for the artist to take a photo and make his own […]
Here’s how I understand the law on this.
Friedman had the option to copyright the image. Even if he did not formally copyright it the law is still on his side as creator of the image. I assume it’s an editorial picture, shot either for a publication or just for Friedman’s interest in the group. I also assume Run DMC were not paid to participate in the image.
So – the image can legally be used as editorial stock – if a mag wants a pic of Run DMC. Friedman can also use the image in gallery shows, promos for, and books about his work.
It can’t be used for advertising without getting a model release from Run DMC.
It’s been changed quite a bit for Guetta’s art – detail dropped out, etc. One could conceivably argue fair use, tho the image used is basically the whole picture – there is no radical reinterpretation, it’s just a high contrast version of an existing photo. The artwork would not exist without the photo.
This is theft, straight up. If the image was somehow extensively changed or used as part of a larger concept, one could conceivably argue fair use. But just to put a few effects on a photo is stealing. The same for Fairey and the Obama image.
APA, ASMP and other photo related organizations should mount a campaign to get some clear laws on this on the books to discourage predatory artists.
Makes you wonder which way the money train went when RunDMC came out with the song “My Adidas”……..
Uncompensated use of a trademarked name in a song or one of the first examples of product placement and commercialism in songs….?
[…] A Photo Editor has Exit Through The Gift Shop Star Mr. Brainwash Sued By Photographer […]
An iconic image of the leaders of a movement that built its sound on samples of other artists work was infringed.
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