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The Morality of Brainwash

March 1, 2011

I don’t care if it was a hoax, I really enjoyed “Exit through the Gift-shop”

”Exit” was the documentary that I watched this weekend on Netflix. It was supposedly created by the British underground artist Banksy from footage ostensibly filmed by Banksy’s friend Mr. Brainwash. It was one of the surreal mind bending (Ok, now I am using Netflix terms in my writing) documentaries that capture you from the first instant and make you question the very nature of a thing.

The ‘thing’ in this case is street art.

The whole concept of street art astounds me. Why would you make art that is 1) Illegal and 2) free? I think many do it for the notoriety like Mr. Brainwash and Banksy. Both of these artists use street art to drum up interest in their gallery shows. The gallery shows then bring the celebutantes and other elites who patronize the artist by buying their works for several thousand dollars.

The concept of using your art as guerrilla marketing to stir up patronage is a fascinating concept. It seems to combine the economics of art in the middle ages with the most postmodern of art forms, Pop Art. Before copyright, artists made their living by being talented and getting hired. In the visual arts world this is still pretty much the case. The existence of economic incentives outside of intellectual property seems to suggest that art may not fail completely without copyright. Nonetheless, I do realize that some copyright protections are needed to make most art economically viable. But still, art in wouldn’t completely cease just because copyright failed to protect it because this type of patronage would still produce some art. Artists could stir up interest by giving away some art, and people would buy some art. I don’t advocate the illegal means, even if there is a large brick wall by my apartment that could use some…improvement.

But that is enough of those musings.

In other news, the art depicted in ‘Exit’ really helped me demonstrate a point in my International Intellectual Property class this week. We were discussing Moral Rights and what exactly that means. Moral Rights, in general, are rights that the author has in their work outside of the economic interest. Copyright generally covers rights to publish, copy, translate, and other things that might be economics valuable to an artist. Moral rights on the other hand, protect things like author’s attribution, the integrity of the work, and the right to withdraw the work from the public. These rights are considered separate from copyright, and can remain with the author even if the copyright is sold.

In the US Moral Rights are very limited. The Visual Artist Recording Act (VARA) gives Moral Rights only in very limited situations (Only applies to paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist.) Plus the US limits the rights to basically attribution. There is a right to integrity in the VARA but it so limited that it might as well not exist.

I have very little problem with the US’s Moral rights provision because of its limitations. But Europe is a different story.

Mr. Brainwash makes his living off of his remixing of famous cultural icons. He blatantly copies the style of Andy Worhal and uses hundreds of famous images to create his works. For example:

Here he uses Warhol’s famous painting of Marilyn Monroe and uses to depict Michael Jackson. By using the style Mr. Brainwash conjures us the similarity in notoriety and iconography that the two share. He also draws the connection between his art and Warhol’s. Warhol made a living in Pop Art and really popularized it within culture. Mr. Brainwash is suggesting that he does the same thing now.

Mr. Brainwash could only do this kind of art here. In France, Brainwash’s home country, Moral Rights might prevent him from creating many of his works. In France an author has a right to ‘integrity’ meaning that the law protects his work from mutilation or alteration in way which may defame the author. This can be even a minor change to the work, such as coloring an old film (Turner Entm’t Co. v. Huston, Cour d’appel [CA][regional court of appeal] Versailles, civ., ch., Dec. 19, 1994). Moral rights are very chilling to other artists who seek to build on classic works. Say if found a famous comic photo of Albert Einstein;

And then say I made it a little more comic:

Arguably I have added something to the photo. You may disagree, but I think you can see my point. I took something and enhanced the comic dimension. Artists do this all the time in Pop Art, they take an iconic image and they add a twist which changes the meaning of the work. In my picture of Einstein I have made the non-tongue part of the picture a comical purple.

In the US the law would likely call my addition ‘transformational’ in France it could be mutilation. The difference being that my work in the US would be legal fair use, in France my work would be illegal infringement. This is the problem with Moral Rights such as integrity. When Moral Rights get applied to works, it limits the ways in which other artists can build upon those works. An artist in the US can take iconic, albeit copyrighted, images and transform them into something new while still drawing upon the original work. But in a nation like France this may not be the case. Meaning that a bastion of culture like France can preserve the works of the past as they are, but only at the expense of limiting new creative works.

Moral Rights sound like a good idea. But they close off a large portion of the material that artists can use for creative expression. Less material generally equals less expression.

I don’t know how I feel about the artistry of Mr. Brainwash’s work, but I do know that I want his work available so I can question whether I like it or not.

My final Ironic point is about the nature of street art. When you spray-paint a wall or plaster your poster to an overpass it is vandalism. I sympathize with art that is so very in-your-face and subversive. But I still can’t bring myself to condone vandalism. Just to be clear, don’t commit vandalism. While I may want to protect the expression of artists like Mr. Brainwash and Banksy, I have to say;

This culture literally is a crime.


This weekend I also read a comic called “Bound by Law.” The comic was created by Duke’s Center for the Public Domain. The comic explains various problems that copyright creates for other artists from the perspective of a documentary filmmaker. The book is an excellent example of the need for limits in terms of copyright. Consider this book my free gift of the week to you;

I cannot give away “Exit Through the Gift Shop” as a free gift. I can’t even tell you that it would likely be available on Pirate Bay because that might encourage piracy.

Creative Commons License
Culture Is Not a Crime Blog is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Marilyn Monroe is (c) Andy Warhol, Michael Jackson is (c) Mr. Brainwash (aka Thierry Guetta), Albert Einstein’s Tongue is (c) Arthur Sasse. Please don’t sue, see I attributed.

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