Q. When does "fair use" end and copyright infringement begin?
A. As soon as there are large sums of money involved.
Street artist Mr Brainwash sued over “copied” image
" it is likely more copyright infringement cases will be brought against street artists. “There should be more cases like [Friedman’s],” he says. “It definitely will go that way because of all the money [street artists] are making.”"While street art’s predisposition towards copying, sampling and riffing on pre-existing imagery may have an art historical precedent in pop art, its underground status has, until now, largely protected it from litigation. “Most street artists follow in the footsteps of Warhol by taking popular images as the basis of their work,”
Street artist Thierry Guetta, better known as Mr Brainwash, is being sued by a photographer for copyright infringement over a well-known image of rap group Run DMC .... Lawyers acting for photographer Glen Friedman say Guetta reproduced his 1985 photograph without authorisation and used it in unique works of art, prints and promotional material, including postcards for his 2008 debut exhibition in Los Angeles, “Life Is Beautiful”. Friedman’s lawyer, Douglas Linde, says they are entitled to a share of “indirect profits” from the exhibition. Linde is seeking unspecified damages for “damage to [Friedman’s] business in the form of diversion of trade, loss of income and profits, and a dilution of the value of its rights”.
Guetta, who denies the copyright infringement allegations, is claiming “fair use”, which under US law allows for the limited reproduction of copyrighted works for the purpose of parody or other creative ends.
Warhol was sued by several photographers, including Patricia Caulfield after he used her image in his 1964 “Flowers” series (all disputes were settled out of court), while Robert Rauschenberg agreed to an out-of-court settlement with photographer Morton Beebe after a case was brought against him over his 1974 work, Pull.
Richard Prince and his dealer Larry Gagosian, are currently the subject of a copyright infringement case brought against him by photographer Patrick Cariou, who claims Prince lifted his photographs of Rastafarian culture for a series of paintings entitled “Canal Zone”. The series was exhibited at Gagosian gallery in New York in November 2008, where, according to Gagosian’s court filing, eight of the 22 paintings were sold for between $1.5m and $3m. Prince, who claims his use of Cariou’s photographs are protected by “fair use”, said that the photographs are not “‘strikingly original’ or ‘distinctive’ in nature”, and that his “transformative” uses of the photographs were “done in good faith and reflect established artistic practices”.
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