UPDATE: Here is an article from LA Weekly that raisies some important points and asks "What Will it Mean for Fair Use?":
"At what point does something become so iconic that it belongs to all of us? Campbell's Soup never sued Warhol. Hey, it was free advertising. And that's how Friedman might have viewed Guetta's work, too -- if there was only room in Los Angeles for the two artists' egos."
Hence my Rant:
This amounts to another small-minded decision from a clueless judge who doesn't acknowledge the importance -- nay, the existence -- of fair use (which = free speech), not to mention the importance of 'referencing' in art, and the transformation of source materials into a new entity. This decision is particularly stupid. Also: what is wrong with these defense teams? One would think they would inform themselves at least a little bit about the way art functions, not to mention the fact that photographs are protected by copyright (duh!) and that it is the exceptions to copyright (ie: the fair use doctrine) that need to be argued. On the whole, these boilerplate legal eagles don't seem to be able to mount a reasonable defense. I am also wondering when people in the art world -- artists, writers, critics, dealers, institutions, collectors, players -- not to mention university art departments, will wake up to the importance of what's going on in IP law (unprecedented copyright extremism and protectionism) and the mayhem it has already produced. Do we really need to band together and defend our right to make art without fear of court intervention? It's beginning to look that way (from the 'vigorously supporting free expression by artists we may not necessarily like' dept) - via the inestimably great Techdirt:
from the too-bad dept
by Mike Masnick
Fri, Jun 10th 2011 7:14am
With Shepard Fairey settling his lawsuit with the AP over an appropriated photo of President Obama, and Richard Prince losing his lawsuit for appropriating a photograph and then adding some paint to it, it seems like appropriation artists are running into more and more legal troubles. And now there's another such legal ruling. Thierry Guetta, who was made famous by being the centerpiece of Banksy's Exit from the Gift Shop documentary, has failed to persuade a judge that his artwork does not infringe on the photograph by Glen E. Friedman of the band Run DMC. You can see Friedman's work and then two of Guetta's works works below:
Now, I'll be the first to admit that the second is clearly a direct copy of the first. However, some of the ruling is a bit troubling. Guetta tried at first to claim that the original photo did not deserve copyright, as there were similar photos of the band in the same stance, and Friedman, thus, had not added enough creative value to get any copyright. That line of reasoning seemed like a non-starter from the beginning, and the judge wastes little time dumping it, pointing out (as photographers always do) that the copyright on photographs is for things like the framing, light, shadows, clarity, depth of field, etc., which were artistic decisions by Friedman, in this case. Given the vast amount of case law on such things, this part is no surprise.
Where I'm a little more troubled by the ruling is on the fair use side of things. The judge went through the four factors, and didn't see any support for fair use. I can see how this reasoning came about, but I think the judge isn't being totally fair here. While you can't really see it in the image above, Guetta's work isn't only just an ink copy, but in that second image he glued 1,000 pieces of vinyl records onto wood to help make the image. To me, that seems transformative. It's making a statement, building off of an iconic image. In fact, one of the issues in the Prince case was that Prince wasn't commenting on the original work. Yet, in this case, it seems clear that Guetta is commenting on the original work, and has created something new and different that does not take anything away from the original. Updated: I updated the images and the description a bit. Guetta apparently did numerous works based on the Friedman image. One was with vinyl, but not all... But, still, it seems clear he's trying to make a statement about Friedman's work.
Why is that so bad?
Some, of course, will bemoan the so-called "lack of originality," but that's a silly red herring. Art is not always about originality, and while the image may not be original, how it was done was enticing and interesting, which should be the point of art. In the end, as with the Prince case, I'm left troubled by the idea that a judge gets to decide what is, and what is not, art. For anyone who is creative, that should be horrifying.
Finally, I have trouble with this part of the judge's ruling:
"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."
That's simply not true. Creating a new work that builds on and transforms the old does not eviscerate the Copyright Act at all. It's actually very much in line with the purpose of copyright, which is to encourage the creation of additional works that benefit the public. And the last line is the most troubling: nothing in Guetta's work prevented or even limited Friedman's ability to "justly benefit" from his original work. If anything, it called more attention to it.
Still, with this growing trend, you have to wonder if the popularity of "appropriation art" is about to take a nosedive, as there's just too much liability involved. So, there we go: judges killing another art form. That should trouble anyone who cares about culture.