At the Brainwash

In Exit Through the Gift Shop (2010), the anonymous British artist Banksy documented the transformation of Thierry Guetta from a used clothing salesman and amateur videographer into the art star “Mr. Brainwash.”  The film is a droll sendup of the art world, culminating in Guetta’s wildly successful monster art show, which consists exclusively of asinine Banksy knockoffs.  Among other things, Guetta’s artwork prominently features reproductions of an iconic photograph of 80s rappers Run-D.M.C.  For example, “Old Photo” (pictured) combined the Run-D.M.C. photograph with an anonymous 19th century photograph.

But the joke was on Guetta.  Glen E. Friedman, the author of the Run-D.M.C. photograph, sued Guetta for copyright infringement in the Central District of California (Friedman v. Guetta, Case No. CV 10-00014 DDP).  Guetta responded that the Run-D.M.C. photograph lacked originality and claimed fair use, but on May 27, 2011, Judge Pregerson granted Friedman’s motion for summary judgment.  Unsurprisingly, Pregerson held that the original photograph was sufficiently original.  But Pregerson also rejected Guetta’s fair use defense, finding that Guetta’s use of the photograph wasn’t transformative because he and Friedman both used it in a work of visual art, and that Guetta infringed on the market for the photograph because Friedman licenses it commercially.
On the law, Pregerson’s decision is surely correct.  At least it tracks the outcome of the recent Cariou v. Prince case and the older Rogers v. Koons case in finding appropriation art insufficiently transformative for fair use.  But why?  In each case, the infringing work looks different from the original work, so it is “transformative,” at least in the literal sense.  Of course, appropriation deprives original authors of license fees, but the ultimate question is whether they are entitled to such fees in the first place.
Interestingly, courts and commentators often focus on the right of original authors to control their work.  As Pregerson put it, “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.”  But why does justice require that authors control and benefit from uses of their work, other than copying?  Indeed, is justice even the relevant standard?
Of course, Guetta is an astonishingly bad artist.  As Banksy muses in Exit Through the Gift Shop, “Andy Warhol was replicating images to show they were meaningless.  And now, thanks to Mr. Brainwash, they’re definitely meaningless.”  But doesn’t fair use protect meaningless art, too?

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4 Responses

  1. Bruce Boyden says:

    Interesting case. I began writing a comment, but it turned into its own blog post: .

  2. Brian Frye says:


    An excellent post. I agree that Pregerson’s treatment of the transformative use element is unconvincing and inconsistent with other cases. And I absolutely agree that judges should be cognizant of the uncertainty introduced by the common law nature of the fair use doctrine. In my experience, it really does have a substantial & pernicious chilling effect on the exercise of fair use.

    Nevertheless, I suspect that, in this case, most judges would ultimately have reached the same result as Pregerson, even if they had engaged in more thorough analysis. Courts seem unreceptive to fair use claims that smack of opportunism & bad faith, both of which Guetta displays in spades. I find that unfortunate, if not necessarily surprising, because I don’t see how either is relevant to most fair use claims.

    I’m intrigued by your observation that “the solution is not as simple as always looking for a more specific purpose. At some level, every defendant’s purpose will be somewhat different than the plaintiff’s; if nothing else, a defendant will always wish to use the plaintiff’s work in a specific way that the plaintiff did not authorize. But that can’t be the optimal categorization of purpose either.”

    It seems to me that there is one use that pretty unproblematically infringes: substitution. But why isn’t a non-substituting use prima facie transformative? And why can’t that be the optimal categorization of purpose? Of course, courts extend copyright protection to cover an increasing swath of derivative works, but it’s not clear to me why. It’s certainly hard to square with an incentive theory. I think it actually reflects a moral sense that justice entitles authors to benefit from derivative works, and that cheaters like Guetta shouldn’t get a free pass. I understand the sentiment, but it seems inconsistent with the justification of copyright. At the very least, it looks a lot like a species of “moral right.”


  3. Bruce Boyden says:

    Thanks Brian, I obviously punted on the whole optimal level of categorization question, but here’s what I had in mind. The perceived value of the transformativeness inquiry is that it’s supposed to do a lot of work in determining fair uses from non-fair-uses. But if all it is is a determination that the defendant’s work is not exactly substitutional–verbatim copies being used for almost exactly the same purpose (e.g., retail sale) as the original–that performs no work at all. A fair use argument for verbatim copies being used for almost exactly the same purpose as the original probably would not even be made, and if it was made, it’s so easy you don’t even need a transformativeness test to get rid of it. Transformativeness is supposed to draw lines closer to the middle of the spectrum, where the issue becomes harder, as I understand it; at least, that is its claim to fame.

    There’s also the well-known problem of the bleed between the first and fourth factors; as I joke to my students, courts emphasize the first factor when they are going to find fair use, and the fourth when they are not. So perhaps the entire doctrine is being bended in service of other goals, although there is some suggestion that courts do this somewhat predictably, which means that it should be possible to identify some standards, at least.

  4. Brian Dupont says:

    I’ve tried to look at the idea of fair use from the point of view of artists, rather than the law, in my own “On Copyright” series (see the 4 most recent posts in the link to my site). My feeling is that if artists put works of art into the culture then they have a corresponding responsibility to that culture. Similarly, if the point of copyright protection is to encourage innovation (in the form of making new works available to the public) then limiting comment and critique of works that have put into the culture represents a form of censorship that runs counter to the reason to have copyright protection in the first place. It is a narrow argument that applies to art as a form of cultural comment,and would not disallow the original artist’s control of their work for licensing fees associated with commercial interests.