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Paging Mr. Brianwash

by Paul Rapp on February 9, 2011

The Shepard Fairey/Obama “Hope” saga has more or less sputtered to a disappointing halt, but a related and much weirder dispute has jumped in to take its place.

Fairey is the shallow and showboating graphic designer whom the press insists on calling a “street artist” because they seem to need a street artist to write about and they don’t get Banksy, the reclusive, secretive and brilliant Brit who seems to be a real street artist. Fairey is responsible for the Obama “Hope” poster, which is, despite what I just said in the previous sentence, one of the most iconic images of our time.

In 2009, somebody announced that “Hope” was based on an Associated Press news photograph. Upon learning this, AP tried shaking down Fairey, Fairey sued AP for a declaration that “Hope” didn’t infringe, AP countersued for infringement, then the actual photographer, Manny Garcia, jumped in and said it wasn’t AP’s copyright, but his. Good times!

It looked like a prime battle that would help define the fair-use doctrine, the maddening, morphing, and critical legal doctrine that determines when using somebody else’s copyrighted stuff is OK, and that affects appropriation art, collage, sampling, social commentary, and basically the entirety of what’s come to be known as “remix culture.” Great facts, good representation on both sides, high-visibility art. The fact that Fairey was an incorrigible publicity hound was actually good—it meant that the public would be engaged and interested in the controversy. Game on.

But about a year ago, the wheels fell off when Fairey was forced to admit he’d destroyed evidence and lied about what photograph he’d actually used to create “Hope.” Lied to the court, even lied to his lawyers. Fairey’s attorneys quit, the court announced that it would consider sanctions against him at the end of the case, and there was talk of criminal prosecution.

A few weeks ago, it was announced that Fairey and the AP had settled the case, with terms undisclosed except that Fairey had agreed to never use an AP image in the future without getting a license first. So Fairey sabotages his own case, then caves on the issue of fair use, the very principle upon which his career has been built.

Still remaining in the case is a marketing company that licensed the “Hope” image for merch, and that is claiming, apparently, that its use of the image was fair use, and if it wasn’t, then it was an infringement that was Fairey’s fault. So maybe at the end of the day we’ll get some kind of helpful fair-use ruling.

Meanwhile, similar issues have popped up in a lawsuit involving the Oscar-nominated film Exit Through the Gift Shop. This strange little Banksy-and-Fairey-backed documentary chronicles the meteoric rise of a Fairey/Banksy wannabe who creates a massive amount of mediocre street-style appropriation art and hypes himself to a witless and lemming-like public into superstardom. There is considerable speculation that the film is a hoax, an elaborate send-up of the modern art world—too many things don’t add up or appear to be staged, and the Fairey-Banksy connection just screams spoof. Either way, it’s a funny and knowing film, a tongue-in-cheek Spinal Tap for the visual-art world.

And in the real world, the Exit Through the Gift Shop artist, a doofy, mutton-chopped Frenchman who calls himself Mr. Brainwash, is getting his ass sued for copyright infringement. One of the dozens of bad pieces of appropriation art Mr. Brainwash appears to create in the film cops an old photograph of Run-D.M.C., and the photograher is suing. Mr. Brainwash, of course, is claiming that his use is a fair use. It’s exactly what we had with “Hope,” except with Run-D.M.C. instead of Obama, an individual photographer instead of the AP, and Mr. Brainwash instead of Fairey. That is, unless Fairey actually did Mr. Brainwash’s work, or unless Mr. Brainwash is actually Banksy, or unless the photographer (who has worked with Fairey in the past) is willingly playing a part in an elaborate conceptual art piece that includes the lawsuit and everything that goes with it. Like the freakin’ Oscars! Nothing creates Oscar buzz like lawsuits, right?

Mr. Brainwash was deposed late last year and testified under oath that he’d created the piece as a promotional piece for the Life Is Beautiful show that is at the center of Exit Through the Gift Shop. I guess it all depends on what “create” means. Now the photographer’s attorney wants to see accounting books from the show as well as outtakes
from the film.

This could get interesting. Or not. I’ll keep you informed either way.