In May, a federal district court found Thierry Guetta, the artist featured in the Academy Award nominated Banksy film “Exit Through the Gift Shop,” liable for copyright infringement. In 1985, Glen Friedman took a photograph of the rap group Run D.M.C., which he published in his 1994 book “Fuck You Heroes.” Guetta later obtained the photograph from the internet and incorporated it in four works of his own.  One work, “Old Photo,” combined a photograph of a 19th century couple with a digital image of Friedman’s photo. Three of the other works recreated the group’s image on different surfaces and in different mediums.

Guetta’s use of Friedman’s images is a form of appropriation art. Appropriation art traces its roots from the collages of Picasso and the readymades of Duchamp and refers to artists taking objects and putting them in a context so that “the meaning of the original object has been extracted and an entirely new meaning set in its place.” Though appropriation art is a known art tradition, the artists’ use can be an infringement of the original work unless it is a fair use. Although no part of the fair use test is dispositive, post-Campbell the greatest weight is given to whether the new work is transformative; therefore, looking at when appropriation art is transformative will be insightful for interpreting the court’s decision in Friedman v. Guetta.

Jeff Koons is an American artist “known for incorporating into his artwork objects and images taken from popular media and consumer advertising.” In the 1980’s Koons was part of a “school of American artists who believe[d] the mass production of commodities and media images ha[d] caused a deterioration in the quality of society.” He asserted that his works “through incorporating these images into works of art [commented] critically both on the incorporated object and the political and economic system that created it.” He considered his work to be satire or parody. See Rogers v. Koons.

In the prominent case Blanch v. Koons, Koons created a piece that consisted of pictures of women’s legs and baked goods in front of a grassy field and Niagra Falls. Blanch, the original photographer of one of the pairs of legs, brought suit against Koons for copyright infringement. The Blanch court found that Koons used the picture “as fodder for his commentary on the social and aesthetic consequences of mass media,” the opposite of Blanch’s use. The court also found the use transformative because of the “changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, [the] entirely different purpose and meaning.”

Friedman is sparse on why Guetta’s use was not transformative. The court simply noted that the “image was used by both [artists] in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.” The court’s rationale for the works which merely recreated the group’s image on different surfaces, and in different mediums, can easily be inferred. In these works, though Guetta changed the size and medium of the original work, the works are essentially reproductions of the original photograph. Guetta did not use the image in any way that would suggest parody, satire, or other social criticism. On the other hand, it is unclear why the court decided Guetta’s “Old Photo” was an infringement.

“Old Photo” is more than a reproduction of the original image because Guetta alters the aesthetics of the image and message of the image. Guetta replaces one of the members of Run D.M.C. in the photograph with a 19th century woman and adds an additional man to the piece. Additionally, “Old Photograph” is done in the style of a historical photograph rather than Friedman’s original urban backdrop, lending itself to a different purpose and meaning. Finally, the juxtaposition of the 1980s African-American with a couple from the 1800s gives the work the flavor of parody or satire. The aesthetic changes combined with the satirical aspects of “Old Photo” show a clear transformation of the original photo; however, the court’s opinion does not opine on each individual work so it offers little insight for future artists.

Though appropriation art is a well established tradition in the visual arts, its legality remains murky. At minimum, the artist must change both the context and medium of the work for it to be transformative; however, as the treatment of “Old Photo” in Friedman shows, this still may not be enough. Without clearer explanations of when appropriation art will be considered transformative, artists will continue to engage in appropriation art at their own peril.

— Justin Shuler

Justin Shuler graduated from Vanderbilt University Law School in 2011 and will be clerking at the Delaware Court of Chancery from 2011-12.

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