Copyright, Intellectual Property

Street Smart About Street Art

Here's an important lesson for copyright lawyers (and their clients).

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Street art, however you define the term, is arguably the most popular visual format on the planet right now, found everywhere from factory exteriors in Adelaide to the deli walls in Des Moines. Much like how fancy French restaurants with white linens and sterling silver candelabra and various types of souffles have given way to exposed-brick-walled joints slinging poutine nachos and pork belly ice cream to customers sitting on milk crates in back alleys, the art world has seen the decline of overly polished, technically proficient works and a rise in rusticism and grittiness and an ascetic type of vibe. Dark and cynical or irreverent and jaunty, the art itself has burst forth from the gilded frames and stuffy salons and found purchase in high-end retail stores, trendy office spaces, and the type of bar that employs an ampersand as part of its name.

As the trend has turned to movement, and dollars have started flowing to first-wave street art moneymakers like Banksy, Mr. Brainwash, and Shepard Fairey, you can bet that the lawyers started rattling their own Krylon canisters and getting into the mix. And the writing on the wall mostly pointed to cases involving unlawful-derivative works that were primarily stenciled or otherwise recast copies of pre-existing works.

The problem of unlawful derivatives arises because a lot of street artists are not exactly artists as that term has traditionally been used. Their skills lie not in painting or drawing or working the Wacom pen on Adobe Illustrator, but elsewhere. Fairey has faced much criticism in this regard. He rose to fame by stenciling a pre-existing image of Andre the Giant to create a crudely rendered portrait sticker, which he proceeded to plaster all over the globe. It was great marketing but not exactly compelling art. Nevertheless, he was able to parlay this prolific plastering, and the savvy branding he built on top of it, into a clothing line, museum retrospectives, international fame, and even a few DJ gigs. But, his critics say, Fairey’s work is primarily based on aping or modifying the work of others, or straight-up tracing in many instances, and thoroughly lacking in original expression.

This was the essence of the claims made by the Associated Press when it learned that one of the most iconic of Fairey’s works (if not the most iconic of his works), the Obama Hope poster, was a modified version of one of its photographers’ original images. Section 17 U.S.C. 106(2) of the Copyright Act reserves to the original artist the exclusive right to recast a work or otherwise make derivatives from the original material, and the AP claimed that Fairey had impinged on that right. Fairey had put his own imprimatur on the original photograph, but his failure to reach out to the photographer to license the photograph before using it put him in a real legal bind. As did the fact that he falsely stated to the court that no sirree he did not use the AP photograph that was at issue in the case but instead used a different photograph that depicted Obama with that hunk George Clooney. And there was also this little issue of him admitting that he destroyed evidence relating to case. Oops. After these embarrassing turns in the gears of the legal system, Fairey settled the case.

Mr. Brainwash, born Thierry Guetta, faced similarly stormy days in court when he was caught using not one but two photographs that he did not create, and for which he failed to reach out to the photographers to secure a license. In the first case, he lifted a photograph of Sid Vicious of the Sex Pistols and worked his artistic magic on it to such a degree that he claimed he did not need a license from the photographer to publish and monetize the resulting series of works, most of which he sold. The court did not pull a punch, noting that Brainwash was an “appropriation artist whose pop art pieces include modified pictures of celebrities” — a burn, but one that is not subject to much dispute.

The court then scoffed at his fair use claim, noting that the aforementioned artistic magic amounted to little more than fiddling with the black-and-white contrast of the photograph and reducing its greyscale (not the icky and accursed Game of Thrones ailment, but the monochromatic light intensity of a photograph), and in one instance pasting an image of beloved cartoon dog Snoopy on top of the plaintiff’s photograph. Summary judgment was eventually entered against Guetta, with the Court quoting a famous line from a Judge Diarmuid F. O’Scannlain opinion in which he referred to a similarly flimsy fair-use defense as “pure shtick.”

Mr. Brainwash fared no better when he was caught marketing and selling pieces that consisted of a photograph of Run-DMC stenciled onto wood and otherwise recast in various materials. His run-in with Reverend Run landed him in legal hot water, which he tried to escape via the rowboat of fair use. The court was not swayed, noting that the photographer that created the Run-DMC image and the defendant both “are artists, and the image was used by both in works of visual art for public display.” This was a key factor, as for a use to be fair it should not negatively impact the rights of the original creator. This lawsuit likewise ended in a loss for the appropriator.

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In each of the above cases, there is an important, and to some obvious, lesson. If you (or your clients) want to develop and sell a derivative work that uses as its foundation a photograph or other work of art that somebody else has created, pick up the phone and call or text or email or instant message or direct message or tweet at or otherwise get in touch with the artist that created the art and have an artist-to-artist tete-a-tete. In other words, work out a deal, such as a non-exclusive license in exchange for a reasonable license fee or a set royalty or split of future proceeds. Most artists are open to such deals, eager to collaborate, and will be happy to hear from a fellow artist who appreciates their work. And, if the artist isn’t down with your proposed project, you can always look elsewhere, to other more receptive artists or even to your own creative talents, and are likely avoid litigation in doing so.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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