Just days after Richard Prince triumphantly won his copyright lawsuit, just when we supposedly established that “law does not require that a new work of art comment on any of its source material to qualify as fair use” — today, appropriation rights take a step back. A California judge has ruled that Mr. Brainwash was, in fact, breaking copyright when he appropriated a famous 1977 black and white photograph of Sid Vicious by Dennis Morris.

After surveying Mr. Brainwash’s art, the judge says “most of [the] defendant’s works add certain new elements, but the overall effect of each is not transformative.” Try harder, Brainwash. You’re not using enough decorative fuchsia splatter. How about a little mole doodle or something?

Oh, woe, how conflicting! Mr. Brainwash’s artist repertoire is truly terrible, however, the fact that judges now act as hobbyist art critics to dictate crucial nuances of the legal code is needlessly complicated. This case demonstrates depressing subjectivity, especially since this particular judge doesn’t think that “appropriation art per se” should be protected by fair use.

Should the legality of appropriation be streamlined, even if it allows truly terrible art (like art by Mr. Brainwash) to exist? Is this like that freedom of speech/but Nazis/BUT FREEDOM OF SPEECH argument?

Mr. Brainwash is terrible.

(Images: Phaidon, HangUpUrban, Unurth)