Author: RJ Rushmore

As mentioned a few days ago, Mr. Brainwash is being sued by Glen E. Friedman over the use of Friedman’s iconic photo of Run DMC. While this lawsuit has been going on for quite a while, attention was first really brought to it after a recent post on Boing Boing. The immediate reaction from the blogosphere seems to be to side with Friedman and against MBW, while somehow trying to explain how this is massively different from Shepard Fairey’s lawsuit with the AP where most of these same people were siding with Shepard.

I would love to, as usual, bash Mr. Brainwash’s work as overpriced, barely qualifying as art, completely derivative and only of any value (monetary, intellectual or otherwise) for the absurdity of him and his career as a whole. And I’d love to back up Glen E. Friedman, a photographer with a uniquely talented eye that combines taking photos of interesting/historic things with aesthetic and technical know-how. If there’s a guy a want to like in this story, it’s Friedman, and if there’s a guy I’d love to hate, it’s Mr. Brainwash. Unfortunately, I’m not going to take the easy sides. All those things I’ve said are true, but in the wider context of fair use and artist rights, Mr. Brainwash is the bastard child of a good idea worth defending.

A lot of MBW’s work relies on taking existing iconic imagery and changing it to fit within his world. With the Run DMC image, he has used it in a variety of ways, including stencils and his portraits made of broken records. He didn’t copy the photograph and start running off copies. He transformed it into something new. Yes, you could overlay MBW’s stencils with Friedman’s photo in photoshop and they would match up, but that’s how references photographs often work. That similarity, the reference, doesn’t mean they two works are the same thing or that MBW is legally obligated to license the use of the image from Friedman. The MBW artwork transforms the Friedman photograph into something new, and even if it doesn’t, street art fans need to be careful about not defending appropriation.

Street art and pop art in particular have relied heavily on the ability to appropriate from other people’s photographs or other imagery, iconic or not and often not licensing or even crediting the original creators. Shepard Fairey (countless times including his early André the Giant image and the Obama poster), Banksy (source), D*face (source), Rene Gagnon (source), C215 INSA (okay this one is within the public domain but it’s still a good example of appropriation) and so many others have used source imagery in their artwork and transformed it into something new. We can debate, particularly with a lot of pop art, the extent to which the original thing was transformed, but there is definitely a change taking place and some sort of artistic or design input involved in making that new image. And if you want to argue that in all those examples I provided except for INSA, the artist should be legally and morally obligated to license the imagery from the creator of the source material, then that’s another debate. What I’m taking particular issue with today is that the same people who defend Shepard Fairey doing his lawsuit with the AP are now rooting for Friedman against Mr. Brainwash for doing essentially the same thing that Fairey did.

Sean Bonner has argued that the key difference between what Fairey and MBW did comes down to how iconic the photograph was to start with. By that logic, any random photograph is fair game to turn into a stencil without credit, but it would become problematic if the source photograph is well-known. Well then Bonner must also think that a lot of street art and pop art is vulnerable to lawsuits. The same argument that Bonner makes on behalf of Friedman would threaten some of the artists mentioned in the last paragraph, Warhol’s Campbell’s Soup Can series, the work of Elaine Sturtevant, any artist using Mickey Mouse except in instances of parody and possibly even Shepard Fairey’s Andé sticker since Fairey was basically utilizing the iconic nature of Andé the Giant for his sticker.

Taking that view out of art and looking at music for a moment, mash up artists like Flosstradamus, The Hood Internet, Girl Talk and DJ Dangermouse rely on a combination of iconic and non-iconic sounds for their songs and don’t license that material. The courts have made it clear that a lot of what they do is illegal, but I don’t think that’s a decision conducive to the creation of new art and music. The White Album, The Black Album and The Grey Album are three very different artistic creations.

I hope that MBW wins this lawsuit and the rights to fair use and artistic appropriation are upheld.

That said, I want to get back to my earlier comment that MBW is the bastard child of fair use. It doesn’t seem to me like MBW’s artwork is how fair use is intended to work. And he looks like a complete jerk for not licensing imagery which it might have been possible to license (Shepard Fairey has licensed some of Friedman’s photos). The ethical thing to do might have been to at least attempt to license as much of the imagery that MBW uses as is possible. But he can’t legally have an obligation to license the imagery. Otherwise, art and music are screwed. MBW’s art based on iconic imagery is not how fair use is intended to work, but if it doesn’t work for MBW, it stops working for the artists who deserve fair use rights and use them respectfully. Although excessive allowances for fair use can screw good over people like Friedman who get taken advantage of by jerks like MBW, on balance, it’s better to have too many rights for fair use than not enough.

But I’m no expert on fair use. I’m hoping to get a nice discussion going here. What do you think?

PS, if you’re wondering why I’ve not posted Friedman’s original photo, it’s because I don’t have permission or a way to get in touch to ask for permission, and I don’t want to upset him by using his photo without permission even though it probably qualifies as fair use in this case. Just kidding (sort of).

Photos by catheadsix and textdrivebys