Friday, June 22, 2018

Never Mind Mr. Brainwash, Here’s Copyright Infringement

It’s not often that one reads an eloquent copyright opinion (from a court or otherwise), but this nice little gem just came to us via a friend.

Judge John Kronstadt, of the Central District of California, has held that Thiery Guetta, aka Mr. Brainwash, infringed a photographer’s seminal photograph of The Sex Pistols’ Sid Vicious (see image).

Judge Kronstadt pulls no punches, peppering his opinion with heavy doses from the Campbell decision and a pinch of Justice Story, “There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors[.]” If Justice Story were alive today one would think he was opining on the Cariou v. Prince case.

Citing Rogers v. Koons, Kronstadt continues, “However, ‘if an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use…there would be no practicable boundary to the fair use defense.”

Quoting Blanch v. Koons, Kronstadt sends a message to the Second Circuit, “An artist is not required to compromise his or her artistic vision merely because the artist could have made a similar statement in a non-infringing way. However, the artist must provide a sufficient justification for using another’s copyrighted material in effecting the artist’s vision. Such a justification could be based on making a commentary on the material used in the other work, i.e., parody. It could also be based on a clear articulation of how using the material served the artist’s objective beyond merely saving the artist time or effort, i.e., satire.”[italics added]

Ultimately, Judge Kronstadt concluded that Mr. Brainwash had presented “no evidence…that [his] works were intended to make any kind of commentary on the Photograph itself.”

If you’re gonna be punk, be Punk.

The case is Morris_v_Guetta (February 4, 2013).


Tags: , , , , , , , , , ,


No comments so far.
  • Leave a Reply
    Your gravatar
    Your Name


Clancco, Clancco: The Source for Art & Law,, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to They are not the views of any other organization, legal or otherwise. All content contained on or made available through is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site