June 8th, 2016

Richard Prince Sued Again (This Time by Photographer Dennis Morris)

An allegedly infringing work from Richard Prince's "Covering Pollack" series.

An allegedly infringing work from Richard Prince’s “Covering Pollack” series.

Photographer Dennis Morris filed a copyright infringement claim last week against appropriation artist Richard Prince in a Los Angeles federal court. The claim is the latest in a growing number of cases filed by photographers accusing Prince of stealing their photos for use as raw material for his artworks.

Morris, who is based in Los Angeles, is charging Prince with unauthorized use of several photographs of Sid Vicious, the lead singer of the Sex Pistols. Gagosian Gallery, which represents Prince, is also named as a defendant in the case.

Morris alleges that Prince copied the Sid Vicious portraits without permission from a biography by David Dalton titled El Sid, Saint Vicious. Prince then made and sold “derivative works” that incorporated the portraits, Morris says in court papers. The derivative works allegedly included an untitled quadtych featuring one of Morris’s Sid Vicious portraits alongside portraits by other photographers of Barbra Streisand, Prince (the recently deceased musician) and Sylvester Stallone.

In addition, Morris alleges that Richard Prince used several other photographs of Sid Vicious without permission in a work from a series titled “Covering Pollack.” Prince created the series in 2010. The allegedly infringing work (above) shows a photo of what appears to be a Jackson Pollack painting-in-progress, papered over with a collage of Sex Pistols band member photos, including Morris’s pictures of Sid Vicious.

Morris is seeking compensation for an unspecified amount of damages resulting from “diversion of trade, loss of income and profits, and a dilution of the value” of rights to the photographs. He is also seeking disgorgement of profits from the sale of the infringing works, and an injunction to bar further unauthorized use of the photographs in question.

Prince has not yet responded to Morris’s lawsuit.

Morris’s claim is strikingly similar to the high-profile lawsuit that photographer Patrick Cariou filed against Prince—and lost. Cariou had accused Prince of misappropriating images from a book called Yes, Rasta. Prince used the Cariou images as raw material for a series called Canal Zone. He and Gagosian earned more than $10 million on the sale of works from that series.

In 2012, the US Court of Appeals for the Second Circuit in New York ruled that most of the disputed works in the Canal Zone series qualified as fair use of Cariou’s photographs because Prince transformed them with “an entirely different esthetic.” Prince was forced to settle with Cariou over the unauthorized use of several of images, however.

Although Prince will almost certainly invoke the Cariou ruling in his defense against Morris’s claim, rulings from the Second Circuit Court of Appeals are not binding in the Los Angeles court, which is in the Ninth Circuit.

Related:
Photographer Sues Richard Prince Over Instagram Rip-Offs…At Last
“SuicideGirls” Deliver Cleverest Response to Richard Prince Instagram Appropriation
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

March 4th, 2013

Photog Prevails in Copyright Case Over ‘Mr. Brainwash’

©Dennis Morris

©Dennis Morris

Photographer Dennis Morris has won his lawsuit against the appropriation artist known as Mr. Brainwash for unauthorized use of a decades-old image (shown at right) of deceased punk rocker Sid Vicious.

A federal district court judge in Los Angeles recently granted Morris’s motion for summary judgment on the issue of copyright infringement. At the same time, the judge rejected a motion by defendant Thierry Guetta–aka Mr. Brainwash–for summary judgment on the grounds of fair use.

“To permit one artist the right to use without consequence the original creative and copyright work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act,” the judge wrote in his ruling, citing another ruling against Guetta from 2011 in a similar case.

The ruling for Morris added to a growing body of case law against appropriation artists who use the works of other artists as nothing more than raw material for their own works. The message from federal courts is that appropriation artists cannot claim fair use unless they parody the original work, or in some other way critique or comment upon them directly.

Morris had sued Guetta for infringement over unauthorized use of a 1977 photograph of Sid Vicious. The original image shows the punk rocker tilting his head and winking at the camera. Guetta, who is know for appropriating images of celebrities and modifying them, created seven image based on the Morris photograph. Some featured higher black and white contrast, some have less contrast, and some include added elements such as splashes of brightly colored paint, according to the court ruling.

There was no dispute that Guetta had copied Morris’s photographs, District Judge John A. Kronstadt wrote in his ruling. The issue before the court was whether Guetta’s uses of the image met the legal standard for fair use.

Courts apply a four-pronged test to weigh a fair use defense. Judges consider the purpose and character of the unauthorized use; the nature of the copyright work; the amount and substantiality of the portion of the original work that is used; and the market effect of the unauthorized work(s) on the original.

In this case, the first three factors weighed in Morris’s favor. The fourth (market effect) was inconclusive.

Most importantly, in considering the first factor, the court concluded that Guetta’s uses of the Morris photograph were not sufficiently transformative. In other words, they did not give the Morris photograph enough new expression, meaning or message, District Kronstadt explained in his ruling.

“The [original] photograph is a picture of Sid Vicious making a distinct facial expression. [Guetta’s] works are of Sid Vicious making that same expression. Most of defendant’s works add certain new elements, but the overall effect of each is not transformative; defendant’s work remain at their core pictures of Sid Vicious,” the judge wrote.

Guetta had argued that his works were intended to comment on the persona of Sid Vicious in particular, and on the nature of celebrity in general. But the judge didn’t buy it, saying Guetta was effectively arguing that any use of copyrighted material in appropriation art is fair use. “But this is the precise argument that the Cariou court rejected,” referring to a district court ruling in New York in the case of Patrick Cariou v. Richard Prince.

In that case, the court ruled that appropriation artist Richard Prince violated photographer Patrick Cariou’s copyright by using some of his photographs as raw material for his own works, without commenting upon the original works or otherwise transforming their meaning. An appeal of that ruling is pending.

For an appropriation to qualify as a fair use, Judge Kronstadt explained, “There must be some showing that a challenged work is a commentary on the copyrighted one, or that the person who created the challenged work had a justification for using the protected work as a means of making an artistic statement.”

Considering the second factor–the nature of the copyrighted work–Judge Kronstadt concluded that the Morris photograph was at least a marginally creative portrait, not just a “recitation” of a fact. That weighted “at least slightly against a finding of fair use,” the judge wrote.

Considering the third factor–the amount and substantiality of the portion of the original work that was used–Judge Kronstadt concluded the Guetta used most of Morris’s photograph, including the central copyrightable elements. That also weighed against a finding of fair use.

Finally, the court considered what effect the Guetta images had on the market for Morris’s image, and concluded that the market effect was subject to dispute. But Judge Kronstadt went on to say that the issue was immaterial “because a lack of harm [to Morris’s market for his image] would not change the determination of an unjustified use under the first factor.”

That first factor, to recap, was a consideration of whether Guetta’s images transformed the meaning of Morris’s image.

Related:
Judge Rules for Photog in Copyright Over RUN DMC Photo
Appropriation Artist Richard Prince Liable for Infringement, Court Rules