From Sean Bonner :Earlier this month I noted that Banksy had finally spoken about the artist Thierry Guetta (aka Mr. Brainwash) profiled in his now Oscar nominated film Exit Through the Gift Shop
Friedman is arguing that Guetta used, without credit or permission, his iconic photo of Run DMC on invitations, artworks, merchandise and promotional materials. The Hollywood Reporter broke this story, connected some of the dots between many of the people involved, and then suggested it's basically the same situation as the Associated Press vs. Shepard Fairey case surrounding the Obama 'Hope' image. It's not, and for number of reasons which I'll get to in a second.
First, those dots: Shepard Fairey appeared in Banksy's film about Thierry Guetta, in fact he was the person who introduced Guetta to Banksy. Shepard Fairey and Glen E. Friedman have collaborated on many projects together in the past. And to disclose my connection to this, I previously co ran an art gallery that worked closely with Fairey, Friedman and Guetta's cousin, Space Invader. I met Guetta many times via the gallery, long before he became Mr. Brainwash. Glen and I were both deposed in relation to Shepard's dispute with the Associated press, and I consider both he and Shepard personal friends.
Now that that is out of the way - the major difference between the two cases is the use of an iconic image. In the Fairey v. AP case, Shepard used a random press image that was not iconic in anyway and changed it significantly. In fact the photographer who took the original image, Mannie Garcia, has stated that he didn't even recognize that the 'HOPE' image which he had seen for months while covering the Obama campaign was based on his photo which says quite a bit about both how much Shepard changed it, and how unremarkable of a photo it was in the first place.
In the Friedman v Guetta case, not only is the photo already famous and iconic, it's arguably *the most* famous photo of Run DMC that exists. In fact it was used as the cover image on a 20 year retrospective of photos of the group. The argument could easily be made that Guetta used the photo specifically for this reason, it was already iconic, very well known and he used it in his artwork because of that. He wasn't just referencing Run DMC, he was referencing the most famous photo of them. Additionally he used it in several instances throughout his exhibition, never once crediting Friedman as the creator of the original photo.
Shepard has argued that he believes what he did was covered by Fair Use laws, and references many instances of artwork he's created non-fair use works based on iconic images where he's worked with, and credited the photographer involve (such as the collaborations with Friedman). The photo of Obama by Garcia *became* iconic after Shepard used it, prior to that it was not noteworthy. In the Guetta case, there's no question the photo was iconic long before Guetta ever stepped onto the scene - and had been registered and sold as artwork on it's own right by Friedman for years.
At face value the cases might seem similar and contradictory, but those are in fact extremely important differences.
All that aside this case is interesting for many reasons. It should put to rest the speculation that Mr. Brainwash is just a creation of Banksy's. Should Friedman win the case, expect other artists and copyright holders to come out of the woodwork as basically every piece of artwork by Guetta is just a twist on an already well known image created, and uncredited, by someone else. What will happen to the values of the Guetta/MBW works that were sold at, as some have suggested, incredibly inflated prices to begin with? I think this story is long from over, and can't wait to see what happens in Exit Through The Gift Shop 2.
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