Last Updated on August 17, 2014

Did the AholSniffsGlue lawsuit against American Eagle Outfitters usher in more street artists standing up for their rights? This week finds director Terry Gilliam in hot water over the use of street art in his new movie, Zero Theorem. Gilliam is a master storyteller, with a unique aesthetic that he uses to drive the emotional direction of his narrative. Gilliam calls Zero Theorem the culmination of his dystopian triptych, beginning with Brazil and later, 12 Monkeys. In Zero Theorem, Gilliam creates a retro-futuristic dystopian society reminiscent of Blade Runner, but with his signature graphic style woven into the landscape.

Zero Theorem’s main character, Qohen Leth, (Christoph Waltz), is a reclusive computer genius, living alone in an abandoned chapel, working on a formula to determine whether life holds any real meaning. The exterior wall of the chapel features a colorful mural, which three street artists, Argentineans “Jaz” (Franco Fasoli) and “Ever” (Nicolas Escalada) and Canadian “Troy Lovegates, aka Other” (Derek Mehaffey) claim is a reproduction of their large-scale mural, Castillo, currently on display in Buenos Aires.



While, this case may seem similar to AholSniffsGlue vs. American Eagle in that they are both large scale murals in areas known for hosting graffiti murals, and in both cases, are corporations used the works without authorization. However, they are starkly different regarding two fundamental copyright concepts; whether illegal street art can hold a copyright and whether the works might be considered fair use.

Is there a valid copyright?

As I mentioned in my previous post on AholSniffsGlue, one of the hurdles the artist must overcome is whether the act of painting the mural may be considered trespassing or vandalism, which may invalidate any copyright claim. The premise is that courts do not want to allow people to profit from their criminal activities. Buenos Aires, on the other hand, is a city that is mural-friendly, without the same property laws we have here in the United States. Castillo, completed in December 2010, was a well-thought out collaboration between the three street artists. They purposefully located the mural on Fitz Roy Street in the zona de graffiti (“street art zone”).

According to the complaint, “While in most major cities, such artists are forced to create their works in secret, in Buenos Aires, painters and muralists are free to create as they please if they have a building owner’s permission, while the local government has even subsidized some of the urban murals.

Without the issue of legality plaguing the work, Jaz and Ever, as citizens of Argentina, registered the mural with the Copyright Office in Argentina and received their registration in 2011. In stark contrast to the AholSniffsGlue case, Castillo it seems has copyright protection.

Fair Use

American Eagle, in its appropriation of the Ahol’s art, used the works as backdrops for their ad campaign, making no changes to the design. In Zero Theorem, we don’t see an exact copy of Castillo, but instead a copy that resembles Castillo, borrowing from the original. But is that enough to make it fair use. To decide whether a work can claim fair use, courts weigh four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Unfortunately, every case is different. There is no bright line which if crossed is a fair use, but one key to the analysis is how transformative the work might be from the original. How transformative must a work be? We can look to other cases as a guide. One recent fair use case that has had a substantial impact on that determination is Cariou v. Prince.

Here’s the story. Between 1994 and 2000, photographer Patrick Cariou lived and worked among Jamaican Rastafari culminating in his book, “Yes Rasta.” Richard Prince, an appropriation artist, began using dozens of the photos to create his versions of the creative work. Prince manipulated the photos by, for example, pasting other pictures on top or painting over certain portions. Prince’s versions became very popular with Gallery shows and substantial revenue. See two of the photos below.

Cariou                                   Prince 

Cariou sued Prince for copyright infringement, but Prince claimed fair use. The case was initially decided in favor of Cariou. The District Court followed precedent stating that fair use requires some form of transformative comment on or related to the . . . original works.” Transformation alone wasn’t enough, instead the transformation must say something about the original work. The court said that without that comment, then Prince’s work was nothing more than a standard derivative, and since the copyright holder has the exclusive right over derivative works, Prince is infringing.

So Prince appealed the case. The appeals court not only reversed the decision but also reworked the transformational use analysis saying that transformation does not require some sort of connection to the original work. Instead, it is enough that the new work merely “alter the original with ‘new expression, meaning, or message.” The result . . . Prince’s work is fair use and non-infringing.

Is Gilliam guilty of copyright infringement? Analyze the four-factors in relation to the results of Cariou and make your own determination. There are no definite answers. As well, we are sure to see a lot of internal politics from the studio that may impact how the case moves forward. For now, we can only guess whether fair use will even be part of the defense and its result.

UPDATE:  I have been made aware that AholSniffsGlue had permission to create his works in the Miami Design District, and so his case is much more like the Terry Gilliam case than previously thought,  Ahol should, then, have a copyright for his works.  In cases like this, the question becomes, not whether an infringement exists, but rather how much that infringement is worth.  So how much of American Eagle’s revenue can be attributed to the use of Ahol’s work?

Steve Schlackman
Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at or through Fremin Gallery in NYC.