In the most recent high-profile case relating to photo copyright infringement in the United Sates, Dolly Gee, a US District Court Judge last week found in favour of the photographer Dennis Morris in a case brought against appropriation artist Russell Young.
Young had used a photograph taken by Morris of The Sex Pistols which Morris had included in photographic books Nevermind the B*ll*cks: A Photographic record of The Sex Pistols Tour (United Kingdom, 1991) and Destroy: Sex Pistols 1977 (United Kingdom, 1998). The images Young created are entitled Sex Pistols, Sex pistols in Red and Sex Pistols+White Riot.
Young argued that he had found the original images on the Web and they did not have any copyright notices. To qualify for copyright protection, a work must be original and include some creativity. It is generally accepted that photographs do include some level of creativity. The fact that the images appeared on the Web without attribution does not undermine Morris’ authorship and ownership.
US law allows for fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching…scholarship or research. There are four factors used in determining fair use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for or value of the copyrighted work.
For the purpose and character of the work, the central factor is whether the new work merely supersedes the original work or it is in fact transformative i.e. adds new meaning. Because the new images are very similar to the original and because the court decided that Young did not intend any distinct purpose or message in creating the work it was found that the work was not transformative.
The nature of the copyrighted work is to do with “if” and “how” the work has been previously published. Because the photograph had been published in two books, Young argued that his use was a fair one, however the court ruled that this publication of the photograph only impacted slightly. The amount and substantiality of the portion of the image used refers to using only enough of the image to make the point that the artist is intending. In this case virtually the whole of the image is used by Young. With regards to the effect upon the potential market, the court decided that in this case there could be an overlap of audience for both the original and the appropriated image. The court decided that the appropriation of the images by Young were not in line with fair use.
With regards to White Riot + Sex Pistols also using the appropriated image, the court found that other elements were added to the final image in order to convey a different meaning so it would come under fair use. However, because the other two works were not considered fair use the judge ruled in favour of Morris.
Images of Screen Prints by Russell Young:
White Riot + Sex Pistols
Image by Dennis Morris:
Sex Pistols Backstage Marquee Club
The Order on Judgement for Summary Motion can be found here: Doc 29.