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?