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Mr. Brainwash
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.
—Paul
Rapp
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