Fair Use Fails Mr. Brainwash: Judicial Stance on Infringement and Appropriation Art Swings the Other Way

Hot on the heels of appropriation artist Richard Prince's victory in the Second Circuit (covered here two weeks ago), a Los Angeles federal court has returned a less favorable ruling for appropriation and street artist Thierry Guetta, better known as Mr. Brainwash. Last week, district court judge John A. Kronstadt ruled that seven of Guetta's works, based on photographer Dennis Morris' iconic 1977 picture of Sid Vicious, deceased lead singer of punk rock group The Sex Pistols, was not protected by fair use, continuing a lack of predictability for future infringement cases  involving appropriation art.

Guetta is a street artist whose works typically appropriate well-known images of celebrities. He and his work were featured in Exit Through the Gift Shop, a documentary film by famed street artist Banksy. His works have fetched high prices at auction houses such as Philips de Pury since 2010 and in 2009 he designed the cover of Madonna's Celebration album. Since 2004, Guetta has used Morris' original photograph in at least seven works, including a large mural in La Brea in Los Angeles, a work made with broken vinyl records, and works that add a mole onto Sid's face and overlay blonde hair and splatters of paint.