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Morris v. Young

By Barry Werbin

Another new interesting artwork photography/art fair use - "transformative use" - decision was issued 1/28/2013 by the C.D. California (Morris v. Young (CD Cal. 2013)), mirroring the same issues as in Cariou v. Prince, 784 F. Supp. 2d 337, 349 (S.D.N.Y. 2011) [on appeal]. In this case, the defendant, Young, was an artist who created a series of works based on photographic images of the punk band the Sex Pistols that he found on the Internet, which Young believed were in the public domain because they bore no copyright notice. The photos had been taken by the plaintiff photographer Morris, who had published two books on the Sex Pistols originally in the UK. The books contained original photographs of the Sex Pistols on tour, taken by Morris, including the photograph in issue (Subject Photograph), which depicts Sid Vicious and Johnny Rotten performing on stage.

Young took that photo and created three different "artistic" variations of it. One was called "Sex Pistols in Red" and depicts the Subject Photograph, "cropped slightly to more closely frame the subjects and tinted in a deep red color." The second one was called "Sex Pistols" and "depicts the Subject Photograph, printed using black enamel on an acrylic background." Young "altered the colors and shades, deepened the contrast between the black and white portions of the image, and added 'grittiness' to the image by printing it in black enamel on an acrylic background." A third a piece called "White Riot + Sex Pistols," depicts two images of the Subject Photograph side-by-side, "with a Union Pacific logo and the words "White Riot" and red stars graffitied atop the images."

On a motion for summary judgment by plaintiff Morris, the court held that Young's fair use defense failed as to the first two of the three images identified as "Sex Pistols" and "Sex Pistols in Red" because they were "not transformative works", and Young failed to carry his burden on the four traditional fair use factors. In particular, the court cited favorably to Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) and Cariou v. Prince. The court found that the "works were [not] created for any reason other than to emphasize the characteristics with which the band was already associated" and such use of the Subject Photograph was "not transformative because it lacks any significant expression, meaning, or message that is unique vis à vis the works' original purpose."

However, with respect to the third work, "White Riot + Sex Pistols," the court denied summary judgment finding the image "bears certain aesthetic characteristics that raise the question of transformation, and, by extension, fair use." [Here we have a court, in my view, using the judicially created concept of "transformation" as a test seemingly apart from "fair use" itself.] "[U]nlike the other two Accused Works, 'White Riot + Sex Pistols' incorporates images beyond the band itself and arranges them such that the composition may convey a new message, meaning, or purpose beyond that of the Subject Photograph." Citing the Supreme Court's decision in Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994), the court held there were issues of fact "as to whether the work does more than 'merely supersede[] the objects of the original creation,' and therefore a trier of fact may reasonably deem it transformative. Campbell, 510 U.S. at 579. The transformative character of a work bears upon the weight and meaning of the other fair use factors."

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This page contains a single entry from the blog posted on February 13, 2013 4:46 PM.

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