Street art has overcome its graffiti heritage to become an accepted and revered form of art. Adorning the public space with images and color is no longer the act of vandals or gangs staking out a territory, but rather one that provides a multitude of thoughtful and provoking themes that are available to everyone, unobstructed by the economic and social barriers that can surround much of today’s art. But there are those few, still, that fail to understand that art, at its basic level, requires at least a minimum of creative thought.
That is the argument that was being debated in Federal Court for the past few years over a Sid Vicious mural. Sid Vicious was bassist for the Sex Pistols, initiators of the Punk movement, which paved the way for bands like the Clash, the Ramones and Green Day. Vicious dies of a heroin overdose in 1979. In 1976, renowned British photographer Dennis Morris took an iconic image of Vicious that remains a photographic testament to Punk disciples. Then, in 2004, Theirry Guetta, also known as Mr. Brainwash, started using Morris’ photo in at least seven works culminating in a giant wall mural on La Brea in Los Angeles. Morris sued for copyright infringement. Guetta claimed that this was fair use. There are no hard and fast rules for fair use, it is often a case-by-case assessment but there are some guidelines.
Section 107 of the Copyright Act sets out four factors to be considered in determining whether or not a particular use is fair.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
In 1994, the Supreme Court emphasized this first factor as being a primary indicator of fair use. In deciding whether an artists is infringing, there are two questions to consider:
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
Morris argument was that the murals were a wholesale pickup of his work and that there was little creative value added so the Fair Use Defense was invalid. Guetta on the other had felt that his additions changed the nature of the work .
“One work features Sid Vicious wearing sunglasses and is printed on a backdrop with the character Snoopy and palm trees,” states a citation from February, “One is a mural. One was made out of broken vinyl records. Two works add a mole on the image of the face of Sid Vicious and an overlay of blonde hair in a different style. Some, but not all, of Guetta’s seven works were sold.”1
A federal Judge did not agree with Guetta. The judge stated that while there were additions to the work, the “overall effect of each is not transformative” and so Guetta cannot argue that his works were protected by fair-use.
This is an important case for artists because art is not created in a vacuum. Artist rely on things they have seen in the past, other works they have followed or techniques they have experimented with that come together to inspire them toward an artistic work. But artists should be careful that aspect of their creative vision are not built solely o the back of someone else’s work.
The Copyright Office has this to say when using someone else’s work as a basis for what you may consider new and transformative:
The safest course is to get permission from the copyright owner before using copyrighted material . . . . When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.2