But it’s fair use…

My friend Sporkii has known about this copy of her artwork as a mural created in 2006 by Tha PHLASH since 2008 when a fellow artist informed her about it.

Original artwork
http://the-crazy-spork.deviantart.com/art/North-Star-14252430

Mural copy
http://www.thaphlash.com/wp-content/uploads/2010/06/wanda_dove.jpg


She contacted the mural painter, and he was more than happy to put her credit up as demonstrated by this string of emails:

hey, i noticed you painted my artwork [http://www.thaphlash.com/index.php?main_page=product_info&cPath=82_85&products_id=205] on this building [http://the-crazy-spork.deviantart.com/art/North-Star-14252430] without contacting me. can i get some credit there? thanks, -spork

Word up Marissa…
like i said to Artur…
i just found out about you… (he told me)
The wall owner supplied me these inspiration pictures a few years back.
I can include some credit if you let me post your image directly… as example. (before and after type thing)

Would you be up for more walls? lemme know peace

-PHLASH

The artist changed up his website recently and the credit was taken away. Sporkii emailed him about the lack of credit and he decided that twitter was that way to communicate.

According to him, it’s fair use. If I see it correctly, taking away the girl would just leave a bunch of clouds.

Upon further inspection it appears he copies a lot of art for both his murals and his paintings.

Sketchy Optimus Prime by Kid Notorious vs tha PHLASH

Summersoon by Bengal vs the PHLASH

Ryu by Jo Chen for Capcom vs tha PHLASH

Kabuki by David Mack vs tha PHLASH copy (found on flickr)

and many more.

This little comment right here shows he claims characters as his own

.

He claims to be an artist. I didn’t realize artists didn’t have original ideas.

She contacted the owner of the establishment that hired him paint the mural about receiving credit but never received a response.

All she wants is credit on his site and on the mural. Is that really too much to ask for?

54 comments

  • He’s pretty talented when it comes to painting these large-scale murals, but biting the artwork of others? A complete hack.

  • It’s kinda stupid copy other artist’s work when your able to create something original by your own just with a little bit more effort. I really don’ t understand.

  • Based on his eloquent correspondence, it seems this guy has the intelligence of a dish rag. But, then I’d expect as much from a “street artist”.

  • His work is pretty impressive… i like it!

  • No, his technique and skill is decent, solid even; but no where close to “pretty impressive.”
    His “work” is a that of a hack.

    Tracers sucks. And you don’t have to use tracing paper to be a Tracer.

  • Awesome murals! What’s the purpose of this post again?

  • To previous comment: Someone else make artwork and Tha Phlash repaints it and sells it.

  • the last two anon comments makes me think it’s either him or his buddies commenting for him.

  • I agree w/ Anon (1). Making such large-scale murals take talent, and I think it’s pretty impressive. If he had originally asked Sporkii or any of the other artist can he use there work, to make them I doubt most of them would have mind.

    Since he did at least acknowledge the original design as Sporkii’s artwork, I submitted the mural on Red Bull’s Street Art View as Designed by Sporkii & Painted by Tha PHLASH

    http://streetartview.com/v/MzA2Ng==

    Good luck Sporkii!

  • ***their work to make them (the murals).

    If someone were to ask me can they paint my work for a huge mural I’d be flattered, but of course I would have to be credited.

  • To S.Donuts: He is taking things without permission. He only credited the artist when confronted, yet now he is claiming that artwork he finds online is “fair use.”

    This is bullshit.

  • Maybe it intuition, but i think she is just trying to pick a fight with him :p

  • Yeh I don’t get it – clearly the guy is talented with the materials he uses but blatantly ripping other artists work? How can you call yourself an artist with such a lack of imagination? The guy makes money from tracing other peoples hard work, I hope he gets his ass sued! I commented on one of his flickr pics but he deleted it – obviously he knows what he’s doing is wrong.

  • Anyone else notice the fact that the North Star artwork is basically a rip off of the Alphons Mucha painting of the same name? Just sayin.

  • Damn! North star IS a rip of Mucha, and shethoughtwewouldntnotice , this is getting funnier by the second lol

  • I can’t believe the people who say “she should be flattered!” Good Lord, people.

    Also, a similarly posed figure from Mucha is way different from the copy-and-paste that the no-talent hack mural “artist” did.

  • Atalaya
    Hopefully he starts to actually give credit to the artist he is taking work from to paint his murals.

    Ryan
    I think you may have misunderstood, I said I would be flattered if someone asked ME to paint one of MY works as a mural as long as I’m properly credited. And of course if there is money being involved I would expect to receive a share as well.

    I think it’d be hard for Sporkii to deny knowing about of Mucha’s “North Star” prior to her own, but I’d also like to think most of the people that visit this site know when a person’s work is clearly inspired by that of someone else. Calling her reinterpretation a rip is a bit much…

  • ^^^
    Ryan
    ***asked ME if they could to paint one of MY works [...]

    (geesh where’s an edit button when you need it)

  • Normally this kind of post with all those supporting examples of ripped work would get a massive five stars for the Major Rip. Seeing as it is registering as a 3, people either need to get a clue or Phlash’s friends have been at work. I like how defensive he is about the rip too – immediately claiming she is against him because he’s a street artist. Grow up, clown.

  • Yes, I was surprised this is registering as a 3/5. Phlash’s way of stealing others art is appalling (not just sporkii’s, but the others too). All the works highlighted here are of the “near exact copy” type. To me he’s not an artist, but a painter copying others work. His inability to understand how he should get permission and credit artists for copying they’re work, demonstrates how little he understands art at all. Anyone who’s ever created a work of art would know how it feels to have it stolen, perhaps he has never made an original piece, so would never understand?

  • If he stole my stuff I would sue the crap out of him! Contact everyone he has ripped off and have a whole army of artist after his balls.. that is if he has any left! just because something is on the internet doesn’t mean it looses all copyright. I don’t understand his logic and these “ANON” comments, they’ve got to know this guy. How is this anime image similar to mucha? seriously.. if its because of the angle of the figure then lets sue everyone that takes a photo in the same manner! we’re all inspired by a ton of stuff, we can’t remember what we saw at the age of 9 to inspire us to create something later in life.. this guy is tippy toeing over the law

  • Dave: there is no fight to pick on her end. She’s non confrontational, but I made the post because I was not about to let that guy get away with treating an artist and friend the way he did. He deserves to be outed as an art theft.

    V & anon1: The low rating is definitely very suspicious as there is ample proof, but I hope time will show it’s true rating

    Calling North Star a rip is definitely a stretch. Massive difference between abdicate copy and an inspiration.

    Thank you to everyone supporting her and all the other artists thus far.

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  • He can’t claim that his stuff is original, so I don’t understand why he won’t give credit. It’s not a matter of anyone’s level of talent, it’s a matter of credit. He’s not even inspired by these things he’s just recreating them. This isn’t rocket science.

  • The people posting crap in Phlash’s favor are either Phlash himself, his friends, or people that are ignorant to art and talent vs creativity. Is he talented? Yeah, obviously. Is he creative? No. He didn’t create any of those pieces. He copied them. Which would be fine and dandy if he GAVE CREDIT. That’s the issue here: there is NO credit given, and he hides the fact that his works are copies. I’ve politely questioned him before on why he won’t give credit where it’s due, and my comments are ALWAYS deleted. So he knows good and damn well he’s copying.

    I’d like to see the naysayers pour hours into an art piece only to have someone else copy, and even profit off of it.

  • A hack through and through, good job Plash…

  • Lame typos on my end. “thief” not theft and “a straight” not abdicate

  • Man, Phlash is a real loser. Way to steal and recolor other peoples work and call it your own. So lame.

  • what a freaking loser. “fair use” my ass.

  • I’m not even all that sure about talented…. I can grid things too.

  • Is it just me, or is this guy using this very mural as his front page? Clearly it must mean a lot to him if he’s using it as his homepage example.

    Is it that much of a trouble to stick on the page somewhere giving credit where it’s due?

  • This guy isn’t an artist, he’s a photocopier with a paintbrush attached.
    Blatant.

  • i seriously doubt his talent too, anyone can make a decent copy of something using a grid. i hope he eventually gets what he deserves, since this is in no wat fair use, it’s just a copy. she asked a reaspnable question and his inability to give her the credit she deserves just proves that he doesn’t want others to know that he doesn’t do his own designs.

    also, i do think both north star versions are similar, but there are plenty of differences as well. it’s an example of being inspired by something, not a ripoff. it looks more like today’s version of the work.

  • I think there s a serious difference between, copy and reinterpretation. Many artist did that in the past, sort of a duality and inter influence, inspiration or even competition. It can lead to an interesting dance or a vile word fight fill with insult.

    Now about this guy, well I do think what he did is actual copy with no reinterpretation or even respect for the actual artist. Being from Montreal myself I know that those kind of people are filling Montreal street, I am also sure it s the same case in any other part of the world. That guy have nothing related to art, but he is more of a commercial guy, using other s people work for mass production. No time for concept and why lose money on conceptualization when you can just take something on the internet in less than 10 minute. I think internet is a double edge knife on one side it s a terrific tool for promotion but it s also dangerous for copy right. But I think it s a bit utopic to wish to show our art to soo many people and don t want anybody to use it.

    I think one good protection is not just create digital art, but to also create solid original artwork with traditional medium.

    But this is a long long long debate, I also had my work stolen in the past and it end up on some skate board

  • It is fine to be inspired by other artists. I am also an artist myself that is inspired by many great artists. Although, when one should take credit for the other’s creation and claim that it is their creation, that is very low. All the artists, who Tha Phlash made money off of their creation, should come together and clean this @$$ wipe human xerox machine to his very last penny. They then should go after the employers that employ him.

  • Why after the employers you might ask? A thief sells you some stolen products. You buy it from that thief. You encourage him to steal again and again and again.

  • His whole “fair use” argument is unbelievably ignorant. It doesn’t take much “talent” to grid and reproduce someone else’s work either. That aside, he’s breaking the law. When you create a piece of art, you automatically gain the rights to that piece of work . Legal documentation helps, but it’s needed. In fact, the copyright symbol on her deviantart page is enough. “Fair use” and “creative commons” were created to protect artists from BS like this… Action needs to be taken. These artists need to band together and shut this idiot down. I’d sue him just to put him in his place. Learn the law before you start insisting you have the right to rip people off…

  • I love that he says he added SO MUCH to the 85 foot wall that it made it his own work…. Way ta draw clouds and extend some ribbons. Inspiration is one thing, this guy straight up copies with just slight edits to fit his use (like adding more clouds or parts of a face) She was just asking for credit or some kudos, he needs to get his head outta his ass.

  • Tha Phlash is a total hack. And worse, he KNOWS what he’s doing when he’s denying credit – he’s not ignorant. At least ignorance MIGHT be understandable, and corrected.

    This is just straight, undiluted BS from Tha Phlash.

  • …and he can put his ‘signature’ in the upper left corner, and the webmaster info in the bottom right corner, but he refuses to post credit to the original artist because his “new site doesn’t have any words” and isn’t “a talkative model”??? He’s cherry-picking. And lazy. And untalented, uninspired, thieving, unremorseful …

    Ick. Now I feel dirty.

  • No, I didn’t miss the point, I just forgot to mention it: his giant-ass, see-it-from-a-mile-away signature is also ON the actual mural, but he couldn’t bother to put a little tag for Sporkii on there too??

    Ok. I’ve spammed enough. (I didn’t mean to; I was posting the thoughts as they came to me.)

  • I say we all go to his website and give him our two cents. I know I already have.

  • Even if this thaPhlash fellow were to delete any comments left on his Flickr stream about the actual artwork author, you can always find the photos of said murals photographed by other people. And leave comments there.

    Plus, his site really does feature a lot of text about himself that it’s a wonder that he can’t find any to put in proper theft source.

  • Pretty sure this is the image he used for “cube girl” on his FLICKR account

    Original: http://diablo2003.deviantart.com/art/Black-Cat-18878140
    Ripped: http://www.flickr.com/photos/thaphlash/4109738626/

    Pathetic.

  • Lord of the Spies

    There is no skill or talent in Mural painting. You simply steal the arm work you like from others and make a grid. It’s not like he is recreating it on a large scale with no guides. You grid out the work and then paint the individual squares according to how they look on the paper. Easy Peasy. As for this “phlash” sue him. If your work is copyrighted then get the money and recognition you deserve. Sue him and the building owners, everyone involved. You will simply get walked over and your work aswell as others will keep getting taken until you do something about this.

  • Wow, Karen K – good eye. The little loop on the hair is the same and everything. That’s pretty bad if he has to copy something that any idiot can do like a simple face with long hair.

  • I commented on the copied pieces featured in this post that are in his photo stream and all he did was delete my comments. If we had like fifty people that could do it every day, that would be amazing.

  • Offhand, I would say that thaPhlash has definitely copied the artwork of the “~the-crazy-spork” in a way that is not fair use, but copyright infringement. What makes this interesting is that sporkii is a derivative of another art piece, “Study for the North Star”, by Alphonse Mucha. Her work is closer to this than Mucha’s actual “North Star” piece. All the works of Alphonse Mucha went into the public domain on January 1, 2010. However, both artists did their work before this happened. She still gives Mucha credit ThaPhlash, although previously giving her credit on his website is now annoyed at being asked to again and is describing his mural as fair use of her work. The mural by thaPhlash is definitely more a copy of her work than a copy of the “North Star” piece by Mucha. The $64,000 question here is whether her piece is transformative enough to be considered an original art piece in itself, and thus deserving of copyright protection. If so, she would have the right to not only ask for credit to be given by thaPhlash, but could ask for money from him or demand that the work be removed. The fact that she is only asking for credit is very commendable. It would be risky for her to sue thaPhlash because the question of whether her work is truly original would have to be settled first.

    The four factors involved in determining fair use:

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    It doesn’t appear that Sporkii is trying to make money from her digital art rendition. She gave credit to Mucha and Mucha’s estate, or whoever is handling his copyrights, did not take notice.
    I assume that thaPlash was paid to do the mural by the owner of the building. That owner gave him pictures of sporkii’s work. He has included photos of the mural in his website as part of his portfoliio without credit being given to either sporkii or Mucha. Apparently, the Mucha estate did not taken notice of that either.

    2. the nature of the copyrighted work;
    All the works in question are works of art (i.e. no facts involved)

    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    I am not a lawyer and have no experience in deciding whether a particular work of art is unique enough to be considered copyrightable. Naively, I would lean to viewing sporkii’s work, although containing the same subject and theme as Mucha’s work as different enough to say that it is a new work of art. It is certainly a different medium.
    ThaPhlash’s mural looks like a copy of Sporkii’s work incorporated into a larger mural. The focus of that mural appears to be what has been copied. So, I would say that the mural is substantially a copy of Sporkii’s digital art piece. I think the flash is mistaken when he says “Didn’t I add enough to that 85 FEET WALL wall [sic] to make it something new? Gotta [sic] support fair use no?” ThaPhlash is obviously aware of. at least part, of what constitutes fair use. I think he is playing a game of trying to avoid copyright infringement by making copies part of a larger piece. He is wrong in this case because what he added does not make the work really any different and what he added is not particularly creative.

    4. the effect of the use upon the potential market for or value of the copyrighted work.
    It does not appear that any of the three parties is very much affected monetarily, by either the digital art piece or the mural. This is probably the main reason why no one involved has filed a law suit or even a DMCA takedown notice.

    All in all, I don’t think this particular issue will ever end up in court. I would say that sporkii has been reasonable in just asking for credit from thaPhlash. I would also say that thaPhlash is being something of a jerk. He is trying to earn income from making art and it would serve him well to be more respectful of other artists. I would not want force him to stop doing murals because of copyright issues, but if he is not going to create his own stuff he should maybe give a cut to the original artist and at the very least give them credit on the mural itself as well as on his website. If it is true he is making a habit of ripping off other artists works, he may end up being sued for copyright infringement and losing in court or he may end up losing his reputation and damaging his business much like the Cook’s Source episode.

  • “3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole”

    what is this rule? to me it’s an urban designer’s myth, or is that written (in stone, or preferably a law book) somewhere?

  • @honkie: The four factors are part of U.S. copyright law (Copyright Act of 1976, 17 U.S.C. § 107). Wikipedia has a good overview of all this and of course gives references which should be used as an authoritative source instead of Wikipedia itself. I will summarize: Fair use is a U.S. invention acting as an exception to copyrights. The four factors of fair use are based on a copyright case from 1841 which established these factors into common law (common law is the form of law based on legal precedents and tradition in society). The copyright act of 1976 codified the four factors. The four factors are not exclusive, a judge or jury can consider other things as well in making a decision about copyright infringement.
    The artist known as thaphlash is based in Montreal, Canada. I believe the mural in question here is on a building in Montreal. His website is also hosted in Canada. I am not sure where the artist known as ~the-crazy-spork is located. I don’t know what the copyright laws in Canada are or what international agreements would cover this. Even if this would be covered by U.S. law or its’ equivalent, ~the-crazy-spork would have to establish that her work deserved to be copyrighted in itself and wasn’t just a derivation of a work that is now in the public domain. A “derivation” would mean that she would not own the copyright on her work and, since January 2010, her work would also be in the public domain. Neither party seems interested in resorting to the courts so the issue is really one of courtesy and respect between artists in the context of what the law would say.
    Both artists have taken liberties with other artist’s works. Sporkii, from her Deviant Art website looks to be doing this as a hobby rather than trying to make a living by selling her art. She is also willing to give credit when her work is derived from someone else’s art. This should be encouraged. I would like to know if she has ever had a piece deleted on Deviant Art because of a DMCA takedown notice because I think that would be an abuse of the process.
    Phlash, on the other hand is making a living, in part, from his artwork. He gets paid to do murals and also includes the murals in his portfolio on his website. The building owners get an artistic advertisement, particularly if they are a business. If the mural is a derivation (in the legal sense) from some other artists work, that artist would be getting free publicity as long as their work was credited or very well known to begin with. Phlash is coming from a background of graffiti art where the artists view everything and anything as being in the public domain. I like his work and I think murals should be encouraged. However, he is treading in dangerous waters now. He has a skewed view of what fair use is and someone is going to end up suing him eventually. Even if he never has to face a court case, his attitude sucks and he is alienating the other artists who he bases his work on. There is a lot of abuse of copyright law which ends up discouraging art and artists rather than encouraging the spread of art and creativity. Nevertheless, you must at least give credit when credit is due. Phlash’s excuses in not giving credit in this case are a bunch of BS and he will end up alienating not only other artists but his audience and potential audience as well. So, Phlash, you are no longer some underground graffiti artist. You are internet savvy, so you must realize your reputation on the internet is everything. Don’t jeopardize that!

  • domain names: THAPHLASH.com registered by Tucows Inc. in 2002
    ISP: BC PAVCO VCEC in B.C. Canada
    IP address is 209.139.195.19
    email: [email protected]
    anomalcouture.com registered by Tucows Inc.
    webmaster: Philippe Agbessi
    http://www.thasyndicate.com

    facebook account: Tha PHLASH
    twitter account: thaPHLASH
    yfrog account: thaPHLASH
    deviant art account: ThaPHLASH
    flickr account: thaPHLASH
    fring account: thaphlash
    qik account: phlash
    zen cart account phlash
    youtube account thaPHLASH
    LinkedIn account: Tha Phlash
    AirbrushTech.info forum account: phlash
    blog on wordpress: urbanbebop (now defunct)

    Philippe Agbessi was contracted to do a mural for the city of Montreal
    Philippe Agbessi is the webmaster at anomalcouture.com a website associated with thaPhlash.
    Tha Phlash does murals
    Tha Phlash is also a web programmer.

  • Uh….saying that her design was a rip in itself is the more ignorant comeback. That’s like saying if someone made a design of Ryu from Street Fighter doing a Hadouken, that would be a copyright rip of Capcom’s design. There is a difference between an “interpretation” and a rip.

    Fact is, this PHLASH guy is unnecessarily being a dick about this situation. She’s not even asking for profit. All she wants is to get some credit. If anyone is on his side, it’s probably JUST HIM being an Anon. Think about it for a second…if you made an artwork that took you hours to do and you find out that someone has painted a mural of it somewhere where THEIR name is credited to the artwork, with no mention whatsoever of the original artist’s design, would you really just be like, “Oh whatever. It’s a mural. I’m flattered.” No, you wouldn’t unless it took you like 10 minutes to do it. This is wrong on every level, no matter how you try to justify it.

    Phlash has skills. I don’t doubt that. The fact that he can copy but still design it in retrospect, shows that he has artistic skills. But copying someone else’s work and recreating it directly is not creative, it’s plagiarism. And to abuse your artistic abilities like that is a damn shame. And to throw the title of being a “street artist” around is even more of a damn shame. Many of my friends are talented, some of the most creative artists I’ve ever met and they do create murals and graffiti art–from their own creative inspirations. This is sucha shame……..

  • http://www.flickr.com/search/?w=all&q=thaphlash&m=text

    http://www.flickr.com/search/?q=the+wanda%27s+mural&w=all&m=&s=int&mt=&referer_searched=

    http://www.flickr.com/photos/photojunkie/4069933242/

    had a flickr search and commented on photos thaPHLASH was tagged but uploaded from other people who were oblivious to his antics. I’ve made it easier for people to click on the links above and comment yourself, make the public aware!

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