Glen E. Friedman files suit

Artist/filmmaker Thierry Guetta accepts Best Documentary award for 'Exit Through the Gift Shop' onstage during the 2011 Film Independent Spirit Awards. Getty

Since the Oscar-nominated documentary 'Exit Through The Gift Shop' was released, controversy grew on whether or not "Mr. Brainwash" was a real artist. But to California federal judge Dean Pregerson, there's a bigger question: Are his works even art?

His answer? No. Thierry Guetta's, or Mr. Brainwash's, image of Run DMC was illegally used, backing the claim made by legendry skateboard and music photographer Glen E. Friedman, sending reverberations throughout the art world.

"To permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act," Judge Pregerson said. "Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work."

'Exit Through The Gift Shop,' was directed by the notorious prankster and street artist known only as Banksy. As the movie develops, viewers are increasingly led to believe that Mr. Brainwash's success is not built upon artistic credentials, but a public relations onslaught partly tied to Banksy and Shepard Fairey, the only street artist who may be bigger than Banksy. Then again, others theorized this is all just one giant piece of performance art by Fairey and Banksy who could be commenting on the invalidity in much of the art scene. Either way, the court's ruling backs parts of both theories: to believe Guetta's piece is original art, you have been, well, brainwashed.

The judgment isn't a broad stroke over art that imitates others work as a whole. It only directly applies to how Mr. Brainwash used Friedman's well-known photo of the three 1980s music giants in their B-Boy stance. Brainwash projected and painted Friedman's photo onto wood and adhered 1,000 pieces of phonograph records to it. The "art" was part of his "Life is Beautiful" installation that is a central focus in 'Exit Through The Gift Shop.'

This is not the first case to claim one's version of art is too similar to be considered a new piece. Fairey too had been ensnared in a legal battle. During the 2008 Presidential campaign the artist used an Associated Press photo of Barack Obama and turned into the dorm-room-staple "Hope" poster. The AP claimed he did not have permission to use their photo and the case was settled before a judgment was decided upon.

Mr. Brainwash now faces damages that are yet to be determined. And whether not he is a real artist or an elaborate performance piece, the final judgment will be for real and likely carry a hefty payout for Friedman.