Art law Controversies USA

Street artist Mr Brainwash sued over “copied” image

Photographer goes to court over image of rap band; more cases expected as “underground” art becomes ever more mainstream

Patrick Cariou’s photograph of a Rastafarian and a painting from Richard Prince’s “Canal Zone” series, 2008

LOS ANGELES. Street artist Thierry Guetta, better known as Mr Brain­wash, is being sued by a photographer for copyright in­fringement over a well-known image of rap group Run DMC (which we were unfortunately not allowed to reproduce for this article). Law­yers acting for photographer Glen Friedman say Guetta reproduced his 1985 photograph without authorisation and used it in unique works of art, prints and promotional material, including postcards for his 2008 debut exhibition in Los Angeles, “Life Is Beau­tiful”. Friedman’s lawyer, Douglas Linde, says they are entitled to a share of “indirect profits” from the exhibition. Linde is seeking unspecified damages for “damage to [Fried­man’s] business in the form of diversion of trade, loss of income and profits, and a dilution of the value of its rights”.

Guetta, who denies the copyright infringement allegations, is claiming “fair use”, which under US law allows for the limited reproduction of copyrighted works for the purpose of parody or other creative ends.

Copyright disputes have, until now, had little impact on the relatively new phenomenon of street art, however, the appropriation of pre-existing images has been a thorny issue in the wider art world for decades.

Jeff Koons, no stranger to copyright litigation having been successfully sued three times for copying other peoples’ work, recently threatened San Francisco gallery Park Life and Canadian company Imm-Living with legal action for allegedly copying his metallic balloon dog sculptures and selling them as $30 plastic bookends. Koons backed down last month after lawyers representing Park Life called for a judgement on the matter and filed a legal document which began: “As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.”

Koons’ large-scale metallic sculptures typically sell for upwards of $20m; with such sums on the line it is little surprise that perceived copyright infringements attract legal disputes. And as street art moves into the mainstream and works begin to attract hefty price tags—Banksy can command prices of up to £300,000 for a painting—the use of popular imagery by street artists is being called into question. Linde says it is likely more copyright infringement cases will be brought against street artists. “There should be more cases like [Friedman’s],” he says. “It definitely will go that way because of all the money [street artists] are making.”

Pop art, too, has seen its fair share of litigation. Its cut and paste culture and a reliance on photography and mass media imagery frequently exposed pop artists to copyright infringement cases—Warhol was sued by several photographers, including Patricia Caulfield after he used her image in his 1964 “Flowers” series (all disputes were settled out of court), while Robert Rauschenberg agreed to an out-of-court settlement with photographer Morton Beebe after a case was brought against him over his 1974 work, Pull.

While street art’s predisposition towards copying, sampling and riffing on pre-existing imagery may have an art historical precedent in pop art, its underground status has, until now, largely protected it from litigation. “Most street artists follow in the footsteps of Warhol by taking popular images as the basis of their work,” says street artist Ben Eine, whose work, Twenty-First-Century City, 2008, was presented to President Obama by David Cameron on his first trip to Washington, DC as Prime Minister last summer. “Street art is a culture of taking other works of art; appropriation feeds underground culture,” said Eine.

The ease with which photographs can be copied was seized upon in the mid-1970s by the Pictures Generation—a group of US artists including Robert Longo, Sherrie Levine, Cindy Sherman and Richard Prince—who borrowed from television, films, magazines and popular art forms. Levine in particular became known for her photographs of other photographers’ work, including that of Edward Weston and Walker Evans. Prince, too, turned to other peoples’ photographs for the basis of his work, for example re-photographing Marlboro adverts for his “Cowboy” series.

While cigarette maker Philip Morris never sued Prince over the series (the adverts were out of circulation by the time he started to make the works in 1980), the artist, and his dealer Larry Gagosian, are currently the subject of a copyright infringement case brought against him by photographer Patrick Car­iou, who claims Prince lifted his photographs of Rastafarian culture for a series of paintings entitled “Canal Zone”. The series was exhibited at Gagosian gallery in New York in November 2008, where, according to Gagosian’s court filing, eight of the 22 paintings were sold for between $1.5m and $3m. Prince, who claims his use of Cariou’s photographs are protected by “fair use”, said that the photographs are not “‘strikingly original’ or ‘distinctive’ in nature”, and that his “transformative” uses of the photographs were “done in good faith and reflect established artistic practices”.


Something borrowed: a Run DMC work by Mr Brainwash in the artist’s 2008 debut exhibition, “Life is Beautiful”, in Los Angeles
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Comments

9 May 12
18:15 CET

DAEMON TRILLITH COMEAU, DARTMOUTH

Stop flaming this one artist!!!! I happen to like his stlye, and all this hate really makes me mad. Sure, Some of it has cause, But Cmon' people!

18 Apr 11
14:31 CET

DAVE HACKER, BOURNEMOUTH

Not a very evolved or interesting piece of art, in this style of artwork I would favour artist Rene Gagnon, who seems to have a better grasp of the Can.

16 Mar 11
14:0 CET

JIM, LONDON

Mr. Brainwash makes some pretty terrible art, he's working hard to destroy the stencil scene as it is. Let them sue.

15 Mar 11
2:55 CET

KAREY MAURICE COUNTS, TRENTON

This whole "Street art" movement is BS commercialized anyway,and the people who benefit should pay homage to the folks who got their heads kicked in or killed by police in New York City. Didn't they deserve a chance to become known and make M.O.N.E.Y? Let us not forget Michael Steward (African American artist) who died in police custody for writting real graffiti in a subway station (no copying or appropriation there). Even my friend Keith Haring (R.I.P) admitted in an NPR radio interview that his looks earned him some freedom from such brutality by police and it made things easier for him to vandalize public property. How naive of me to think that the commercial art world was really about real cultural exchange.It looks like "Pirates of the Carribean".

13 Mar 11
19:59 CET

JOEKING, PETERBOROUGH

So therefore every painting that is bases on someone elses photo is liable to be sued? The painting transformed the photo, it is obviously based on the photo but it it is not the photo. How far can you transform a photo into a drawing/painting and not get sued?

13 Mar 11
16:44 CET

R LORD FRISK, MICHIGAMME

“It definitely will go that way because of all the money [street artists] are making.” two or three artists who started out by writng graffiti become relatively successful, and now we're all millionaires? where's ALL THE MONEY? shepherd fairey and banksy seem to be the only people that have made serious cash off their work. but now some kid throwing a stenciling a copyrighted image onto his mural can be sued for millions because street artists make ALL THE MONEY. this statement is ignorant.

11 Mar 11
7:17 CET

KAREY MAURICE COUNTS, TRENTON

Hip Hip Horray!!! Its about time this issue has come to light.I've been commenting on this practice of appropriation and down right copy catting for a while now.Why can't the "art world" see the value in originality and support the real creative mind? I always thought real art was to come from the mind,not the behind, I got plenty of real art!! And,I don't go around trashing city's around the world.

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