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Arts Brief A Publication of Maryland Lawyers for the Arts: Left-Brain Support for Right-Brain People VOLUME 4 | ISSUE 2 SUMMER 2011 Court Says Mr. Court Says Mr. Brainwash Infringed Brainwash Infringed Run-DMC INSIDE Photo (p.1) Run-DMC Photo by Marcia Semmes, MLA Executive Director Tattoo Artist Settles Suit Over For the second time in recent months, a “Hangover” Ink federal trial court has rejected an artist’s (p.1) fair-use defense to a photographer’s copy- High Court right infringement claim, ruling that Mr. to Rule on Brainwash infringed Glen E. Friedman’s Law Removing copyright in his photograph of the hip-hop Foreign Works From Public music group Run-DMC. Domain (p.4) Mr. Brainwash, aka Thierry Guetta, used the The Crowd Roars: photo to advertise an art show that appeared Crowdfunding for Artists (p.5) in a “documentary” about the British graffiti artist Banksy, “Exit Through the Gift Shop.” Image courtesy of Whitman v. Warner Bros. First Person: Kind The film follows Guetta — an eccentric of Screwed (p.7) shopkeeper turned amateur filmmaker turned artist — as he attempts to capture Tattoo Artist Settles Suit the elusive Banksy on film and is sucked into the celebrity art world in Los Angeles. Over “Hangover” Ink by Marcia Semmes According to the opinion, Friedman took The tattoo artist who claimed that the mak- the photo depicting the three artists stand- ers of the movie “Hangover: Part II” infringed ing shoulder to should and wearing Stetsons his copyright in Mike Tyson’s distinctive facial in 1985. ink settled his suit in June, but not before a judge ruled that he had a “strong likelihood Guetta found the photo on the internet of prevailing on the merits for copyright in- and incorporated it into four works — fringement.” including a “Broken Records” work created by projecting the photo onto a large piece Artist S. Victor Whitmill sued Warner Brothers of wood, painting over it, and gluing 1,000 in federal court in Missouri in April, alleging that pieces of phonograph records onto the wood. Warner Bros. infringed his copyright through That piece was used to advertise Mr. Brain- its unauthorized copying, distribution, and public wash’s “Life is Beautiful” installation in Los display of Tyson’s tattoo in advertising and Angeles, which appears in the film. promoting the movie. (continued on page 2) (continued on page 2) (Mr. Brainwash from page 1) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copy- Guetta argued that the elements of the photograph that righted work. he copied were not original because elements like the “B-Boy Stance” and the musicians’ “stern countenance” As the court explained, the “purpose and character of use” were already in the public domain. factor examines to what extent the new work is “transfor- mative” and does not simply supplant the original work and Rejecting that argument, the court said that Friedman whether the work’s purpose was for profit or not. selected and arranged the subjects, made related decisions about light and shadow, image clarity, depth of field, spatial relationships and graininess in his copyrighted photograph. In considering whether a work is transformative, the ques- He also selected the background and perspective, the court tion is whether there was “real, substantial condensation of said, concluding that “all of these particular artistic decisions materials and intellectual labor and judgment” or “merely commutatively result in the Photograph.” facile use of the scissors or extracts of the essential parts constituting the chief value of the original work,” the Because it was undisputed that Friedman owned the copy- court said, citing the Ninth Circuit’s decision in Worldwide right, the court went on to rule on the second prong of Church of God v. Philadelphia Church of God, Inc. Under that the copyright infringe- ruling, a use for the ment test—access and same intrinsic pur- substantial similarity. pose as the copy- The court found both. right holder’s seri- Guetta admitted that ously weakens he found the photo on a claimed fair use. the internet, the court said, and the The court concluded four works plainly that Guetta’s use was borrow elements of not transformative. Friedman’s photo. Both Guetta and While Guetta removed Friedman are artists, the background and and the image was used by both in changed the coloring Image courtesy of banksyfilm.com in his four works, these works of visual art “minor” changes did not alter the fact that the distinct for public display, the court found. While the statements figures in the photo remained “clearly visible and readily made by those respective artworks and the mediums by identifiable,” the court said. which those respective statements were made differ, the use itself is not so distinct as to render the defendant’s Noting that humans use facial expressions, actions and use a transformation of the plaintiff’s copyright. body language to convey meaning, the court found that copyright law recognizes that any spark of originality of Noting that photographs taken for aesthetic purposes are expression is protected. Further, “when the issue is whether creative in nature and thus fit squarely within the core of the acknowledged appropriation of a photograph of a per- copyright protection, the court also found that the second son or persons coupled with modifications by a defendant factor weighed against a fair-use defense. constitutes substantial similarity, this court is of the mind that as long as the essence of the expressions of the subject The degree to which Guetta borrowed elements from or subjects is copied, there will almost always be substantial similarity. A photograph of a person captures a person’s Friedman’s photograph was both quantitatively and quali- expression in a particular instant of time, and will almost tatively substantial, the court said, noting that he downloaded always possess the requisite level of creativity to warrant an exact digital copy and used substantial portions of it, protection.” including the three individuals’ faces. The court found that Guetta’s fair use failed on each of Finally, the court said, the defendant’s commercial and the four required elements — the purpose and character artistic use of the photograph competes directly with of the use; the nature of the copyrighted work; the Friedman’s use. g 2 MLA Arts Brief : Summer 2011 (Tatoo from page 1) Founded in 1985, Maryland Lawyers for the Arts provides The Tyson tattoo plays a key role in the movie: After a pro bono legal assistance to income-eligible artists and arts organizations, and educational workshops and night of wild partying lead actor Ed Helms wakes up with seminars on topics affecting artists. it on his face and Tyson himself makes a cameo in the film. MLA is funded by the Harry L. Gladding Foundation; According to Whitmill, he created the tattoo for Tyson the Goldsmith Family Foundation; Mayor Stephanie ABOUT MLA Rawlings Blake, the City of Baltimore, and the Baltimore in Las Vegas in 2003 and the fighter signed a release form Office of Promotion and the Arts; PNC Bank; the Miles & acknowledging that all artwork, sketches and drawings Stockbridge Foundation; and by an operating grant from related to it belonged to the artist. Whitmill registered the Maryland State Arts Council, an agency dedicated to the copyright the same year. cultivating a vibrant cultural community where the arts thrive. MLA also gratefully acknowledges the support of the Maryland Institute College of Art. Along with his complaint, Whitmill sought a preliminary injunction to halt the release of the movie on Memorial Day weekend. Official Sponsor: Art Miller & Associates Court Reporters & Videographers Ruling from the bench, Judge Catherine D. Perry of Fed- eral District Court for the Eastern District of Missouri said May 24 that while Whitmill had a good case for Members: Ballard Spahr copyright infringement, the public interest in seeing the Bowie & Jensen, LLC movie released outweighed it. DLA Piper Fisher & Winner The judge rejected Warner Brothers’ fair-use defense, Gallagher Evelius & Jones, LLP Goodell, DeVries, Leech & Dann, LLP finding that its use of Whitmill’s work was not a parody, Gordon, Feinblatt, Rothman, Hoffberger & Hollander but an exact copy. “This use of the tattoo did not com- Gorman & Williams ment on the artist’s work or have any critical bearing on Hertzbach & Co., PA the original composition. There was no change to this Kahn, Smith & Collins PA Kramon & Graham tattoo or any parody of the tattoo itself. Any other facial McGuireWoods LLP tattoo would have worked as well to serve the plot device.” Ober|Kaler Venable, LLP Although the question of whether copyright law applies University of Baltimore School of Law to tattoos is somewhat unsettled, Judge Perry came Whiteford, Taylor & Preston LLP down squarely in the “yes” camp, concluding that “Of course tattoos can be copyrighted.” Some commenta- MLA Arts Brief aims to educate and inform tors, including Warner expert witness David Nimmer, Maryland artists about legal issues affecting them. It is not intended as a substitute for legal advice. Artists with argue that human flesh cannot serve as the “medium of legal issues should seek legal counsel to address specific expression” that Congress intended to embody legally questions. protectable authorship. Executive Editor: Marcia Semmes While the terms of the settlement weren’t disclosed, a Design Director: Gina Eliadis Warner Brothers attorney said during the preliminary Board of Editors: injunction hearing that Whitmill had demanded $30 million Cynthia Sanders, Esq., Ober|Kaler; to settle his claim. g Jennifer Stearman, Esq., McGuire Woods; Michael S.

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