Morris v. Young - 925 F. Supp. 2d 1078 (C.D. Cal. 2013)

Rule:

The Courts considers four factors in the "fair use" analysis: (1) the purpose and character of the use; (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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

Facts:

Dennis Morris is a photographer and artist. Morris has published two books: Never Mind the B*ll*cks: A Photographic Record of the Sex Pistols Tour (United Kingdom, 1991), published with copyright notice; and Destroy: Sex Pistols 1977 (United Kingdom, 1998). Both books were originally published in the United Kingdom. The books contain original photographs of the Sex Pistols on tour, taken by Morris, including the photograph subject of this case (“Subject Photograph”), which depicts Sid Vicious and Johnny Rotten performing on stage. Morris asserts that he is the sole author and owner of the Subject Photograph. In addition to the two books, Morris has distributed the Subject Photograph through a website called "camerapress.com." Morris obtained United States copyright registration certificates for the two books in 2011. Russell Young is an artist and former photographer. Sometime in the mid-2000s, Young created a series of works based on images of the Sex Pistols that he found on the Internet. None of the images Young used in this series contained copyright notices, and Young therefore believed they were in the public domain. Among the unmarked images Young found on the Internet was the Subject Photograph. In a deposition on November 20, 2012, Young stated that he does not recall exactly how he came upon the image of the Subject Photograph on the Internet, but he believes that he found it "multiple times." Morris filed a Complaint against Young seeking damages for copyright infringement and an injunction enjoining Young from further infringement of the Subject Photograph.

Issue:

Did Young engage in copyright infringement by making, distributing, and selling derivative works from the Subject Photograph in his work, "Sex Pistols" and "Sex Pistols in Red"?

Answer:

No

Conclusion:

The Courts considered four factors in the "fair use" analysis: (1) the purpose and character of the use; (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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The first factor in the fair use inquiry is "the purpose and character of the use," including whether it is of a commercial or non-commercial nature. The Court found that no material dispute of fact existed such that a trier of fact could find that "Sex Pistols" or "Sex Pistols in Red" constitutes a fair use of the Subject Photograph under 17 U.S.C. § 107.  The two works are not transformative because they do not invoke new expression, meaning or message distinct from that of the Subject Photograph. Accordingly, the Court Morris’ Motion for Summary Judgment with respect to "Sex Pistols" and "Sex Pistols in Red.

Unlike the other two Accused Works, "White Riot + Sex Pistols" bears certain aesthetic characteristics that raise the question of transformation, and, by extension, fair use. The Court found that a triable issue exists 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. Because a triable issue of fact exists as to whether the work is transformative, the Court cannot determine as a matter of law that "White Riot + Sex Pistols" is not a fair use of Morris' photograph in light of all the factors. Accordingly, the Court denied summary judgment as to "White Riot + Sex Pistols," because a jury could reasonably conclude that the work constitutes a fair use.