Dennis Morris was a photographer who recorded the Sex Pistols’ legendary 1977 tours, capturing at least one iconic on-stage image of Johnny Rotten and Sid Vicious. Russell Young is an artist who found that image on the internet and used it, without Morris’s permission, in a series of Warhol-like pieces. Morris v. Young, decided yesterday by Judge Gee of the U.S. District Court in Los Angeles, is but the latest installment in our continuing series of not-easily-rationalized or reconciled fair use decisions.
The court considered three pieces of Sex Pistols iconography created by Young. The first was “Sex Pistols in Red,” in which Morris’s photograph was simply tinted in red.
The second was “Sex Pistols” in which the same photo was printed in black enamel on an acrylic background. Finally, there was a piece called “White Riot + Sex Pistols,” in which the photo is reproduced twice, side-by-side, with a partially visable Union Pacific logo and the words “White Riot” and red stars graffitied atop the images:
According to Young, he “completely distort[ed] the photograph of the band with my chaotic use of red ‘stars,’ partially legible words, and the railroad logo.”
The Court ruled as a matter of law that the red and black pieces were not fair use of the photograph, largely because they were not “transformative,” i.e., they lacked “any significant expression, meaning, or message that is unique vis à vis the works’ original purpose. Young has proffered no credible explanation of his purpose in creating the works, and the Court cannot discern any possible new expression or commentary from the face of the works that raises the possibility of transformation.”
With respect to “White Riot + Sex Pistols,” however, the Court would not go so far as to reject fair use as a matter of law, but rather ruled that “a triable issue of fact exists as to whether the work is transformative.” The Court noted that it “incorporates images beyond the band itself and arranges them such that . . . the possibility of new expression is apparent from the face of the work itself.”
The Court was impressed enough by this possibility of “new expression” (neither Young nor the Court explained what that was) that it did not go on to weigh the other fair use factors, such as the “amount and the substantiality of the portion used.” I might have thought that the wholesale appropriation of the photograph (twice!) would have militated rather heavily against letting this one go to a jury simply on the basis that the photograph was defaced, rather than tinted.