Tag: glen e friedman

Earlier this year, Mr. Brianwash lost a court case where he was sued by the photographer Glen E. Friedman over the use of one of Friedman’s photographs as the basis for some artwork by Mr. Brainwash. MBW based a number of pieces (including the one shown above) on Friedman’s iconic photo of Run DMC, but did not license the image from Friedman. The prevailing opinion online seemed to be that Friedman was right to sue and that MBW should have paid the license the photo. I defended MBW. Recently, another fair use case has come up where the circumstances are very similar to this case, but for some reason the internet community has come out in favor of the appropriator and against the photographer. That is the case of Andy Baio versus Jay Maisel over the use of a Maisel photograph, modified by Baio, being used as an album cover. It’s an interesting story and you can read the whole thing over here. Supporters in this case have overwhelmingly sided with Baio, to the point where people put up wheatpastes criticizing Maisel on the outside of Maisel’s home. What’s the difference between Friedman versus MBW and Maisel versus Baio?

It seems to come down to one simple thing: likeability. In the MBW/Friedman case, Friedman is the likeable character. His photographs are iconic and he’s put in years of hard work. Mr. Brainwash is just bleh, and Exit Through The Gift Shop doesn’t paint the prettiest picture of him. With Baio/Maisel, Baio modified Maisel’s photograph as one piece of a much larger and likeable project, a musical project where the visual component was not a major consideration, but a nice afterthought, and that musical project was a really cool project. Baio looks like he’s been blindsided by Maisel’s legal threats. So now Baio is the likeable character in the story. But the amount of change that each artist did was probably about the same. In fact, Baio probably made less changes to Maisel’s photograph than MBW did to Friedman’s. MBW was trying to be somewhat transformative, and Baio was trying to imitate Maisel.

The other component here is money. Maisel is a millionaire and forced Baio to pay over $30,000 to settle a case about a project that Baio wasn’t going to make money off of anyway. And while I’m not sure about Friedman’s financial situation, Mr. Brainwash is known to sell millions of dollars of artwork in one night. And nobody wants to side with the rich guy who is just getting richer off of the poorer guy’s hard work. That’s no fun. So even this comes down to likeability. Everyone wants to root for the underdog.

It seems that, at least in the court of public opinion, legal appropriation is little more than a popularity contest. Appropriation is such a grey area that whoever is more likeable is deemed to be in the right. It’s certainly something that I’ve fallen for in the past as well, but in the future I’m going to be a lot more careful, and I hope the rest of the blogosphere will be as well. Street art fans should be particularly aware of these issues, as so much street art and pop art relies on some degree of appropriation.

For the record, I think that both Mr. Brainwash and Baio were in the right.

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