©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

©Michael D. Jones/Mike Jones Photography

Music producer Quincy Jones and photographer Michael Donald Jones (aka Mike Jones Photography) have settled their dispute over the photographer’s claim of copyright infringement. Terms of the settlement were not announced.

Mike Jones filed suit last year in a federal court in Los Angeles, alleging that Quincy Jones  provided a portrait without permission for use in ads, packaging and other materials to promote a line of audio headphones. The headphone manufacturer, and a book publisher that also used the photo, were named as co-defendants in the case.

Mike Jones claimed that an associate of Quincy Jones’s offered him $5,000 in 2010 for what amounted to a rights transfer of the disputed portrait. The photographer asked for $10,000, then got a counter offer of $6,500, which he allegedly refused.

The images began appearing without Mike Jones’s permission in ads and other promotions for the headphones, which were endorsed by Quincy Jones. Mike Jones filed a claim for infringement early last year against Quincy Jones, headphone manufacturer AKG Harman, and Hal Leonard, the music book publisher.

AKG Harman denied the photographer’s claims, saying that the disputed photograph was shot on a work-for-hire basis.

Mike Jones alleged in his lawsuit that the disputed portrait originated when he photographed Quincy Jones in 1995 in Hollywood at Qwest Records. Mike Jones then provided Quincy Jones with 8×10 prints of some of the photographs. At that time, he refused to sign away his rights to those session photographs, despite Qwest Records’ efforts to “strong-arm” him into transferring the rights, Mike Jones alleged in his claim.

Neither Mike Jones nor the attorneys for either side responded to requests for comment about the settlement.

Related:
Quincy Jones Co-Defendant Denies Copyright Infringement Charge
Photog Sues Quincy Jones for Infringement, Says He Was “Strong-Armed”

Artist Shepard Fairey was sentenced to 300 hours of community service and fined $25,000 today in a federal courtroom in Manhattan today for destroying documents, falsifying evidence “and other misconduct” in his civil litigation two years ago against the Associated Press (AP). He had faced a maximum of six months in jail.

Fairey pled guilty to the criminal charge last February. The US District Attorney in Manhattan announced Fairey’s plea shortly after he settled his civil case with the AP over his unauthorized use of an AP image to create the “Hope” poster that became an icon of Barack Obama’s 2008 campaign for President.

“Shepard Fairey went to extreme lengths to obtain an unfair and illegal advantagein his civil litigation [against AP], creating fake documents and destroying others in an effort to subvert the civil discovery process,” US Attorney Preet Bharara said in announcing Fairey’s guilty plea.

AP claimed copyright infringement against Fairy in 2009 for unauthorized use of the image of Obama to create the Hope poster.

Fairey tried to pre-empt the claim by asking a federal court judge to declare that the Hope poster amounted to a fair use of the AP photograph. In seeking that declaration, Fairey gave “factually untrue” information about the image he had used, the US District Attorney said. Specifically, Fairey claimed that he had used part of one AP image to make the poster, when in fact had used a substantial portion of a different AP image.

Fairey admitted the discrepancy in 2010, saying he had made a mistake about which image he had used. He said he then tried to cover up the mistake. (His fair use defense was arguably stronger with the image he originally claimed to have used.)

The US Attorney began a criminal investigation after Fairey’s admission, and concluded that he had created “multiple false and fraudulent documents” which he presented to AP during the discover process in the civil litigation.

The US Attorney also said Fairey tried to get one of his employees to mislead investigators.

Prior to pleading guilty to the criminal charges, Fairey had settled his civil litigation with AP on mostly undisclosed terms (the two sides did agree to share proceeds from licensing of the Hope poster image, however).

Starting this week, web sites that have received high numbers of removal notices for unauthorized use of copyrighted content will rank lower in Google’s search results, the search engine giant announced on its Inside Search blog on Friday.

Because Google is the number one search engine, this could result in lower traffic for sites that regularly post copyrighted material without authorization. “Sites with high numbers of removal notices may appear lower in our results,” according to the post by Amit Singhal, Google Fellow and the Senior VP of Engineering.

As The New York Times Media Decoder column notes, Google’s new ranking system will only take into account valid copyright-removal notices sent to Google by copyright holders themselves.

To learn how to inform Google about a copyright infringement on any Google product (including its image search, web search, Google + and YouTube), visit the Google support page titled Removing Content from Google.

Google’s blog also reports that the company now receives copyright removal notices for over 4.3 million URLs a month. That’s as many notices as it received in all of 2009.  However, these notices come from just 1,636 copyright owners (check out this chart on Search Engine Journal). Most of the notices are coming from large media companies holding many copyrights.

©Thomas Barbèy. “Rhinal Congestion”

Muench Photography and Mountain Light Photography have filed a copyright infringement claim against a Las Vegas-based photomontage artist for unauthorized use of two of their photographs.

The artist, Thomas Barbèy, creates surrealistic photomontages. According to his Tumblr page, he uses  images that he shoots on his travels all over the world. He claims inspiration from René Magritte, M.C. Escher, and Roger Dean, and says, “I’m constantly asked about how I do [the montages], I would like to think that the pictures can be appreciated without any real knowledge of their technical virtuosity. The visionary inspiration and imagination is not a technical skill learned in school but rather to my personal belief a gift from God.”

And theft of other people’s photographs, allegedly.

©Muench Photography. “El Capitan in Winter, Yosemite National Park”

“He claimed he took all of these images himself, and he clearly doesn’t,” says Marc Muench, one of the plaintiffs, who is suing Barbèy in a federal court in Los Angeles.

“The claims in this lawsuit have no merit whatsoever,” says Barbèy’s attorney, Charles Harder.

According to the lawsuit, Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape) using an image by Muench called “El Capitan in Winter, Yosemite National Park.” Muench’s image appeared in 1993 in a book called National Parks of America (Graphic Arts Center Publishing Company). He also registered the image with the US Copyright Office that same year.

The lawsuit also alleges that Barbèy used a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” Rowell’s “Quadruple Falls” image was first published in 1997. Mountain Light registered the image with the US Copyright Office in 2009.

Barbèy sells his prints through his own gallery in Hawaii, as well as through an online retailer called Artifacts Gallery. “Pitcher Books” and “Rhinal Congestion” are priced at $1500 each on the Artifacts Gallery Web site.

Charles Harder says that his client’s use of the Muench and Mountain Light images is protected by “the legal doctrine of transformative use, as well as the doctrines of fair use and de minimis use.” The lawsuit tries to pre-empt a fair use defense by saying that Barbèy’s images do not “criticize, comment on, or otherwise refer the viewer to” the Muench  and Mountain Light photographs.

©Thomas Barbèy. “Pitcher Books”

Harder also says that the statute of limitations applies in this case. He is suggesting, in other words, that Muench and Mountain Light didn’t bring their claim to court soon enough, so it will be dismissed.

Harder says there were “very minimal sale of the works at issue, so even if there was liability (which there is not), damages would be nominal.”

That might be the case for the Mountain Light image, which was registered after the alleged infringement, making Mountain Light eligible for actual damages only. But the Muench image was registered prior to the alleged infringement. So if a court holds Barbèy liable for infringement, Muench would be eligible for statutory damages.

Mountain Light’s operations manager was not immediately available for comment.

©Mountain Light Photography. “Quadruple Falls at Dawn, Glacier National Park, Montana”

© Kristina Hill

When wedding photographer Kristina Hill learned that her engagement photo of a same-sex couple had been used without her permission in a political flyer attacking same-sex marriage, she told PDN she wasn’t sure she had the resources to pursue a long legal battle. Now Hill and her clients have an ally. Southern Poverty Law Center (SPLC), the civil rights organization, yesterday sent a cease and desist order to Public Advocate of the United States, a right-wing political organization, demanding they confirm they are no longer using the image. In the order,  SPLC also says they are considering other possible legal action for infringing Hill’s copyright.

Hill’s photo shows Tom Privitere and Brian Edwards, a New Jersey couple, kissing. Public Advocate of the United States used the photo without the permission of Hill or her clients in a flyer attacking Republican Colorado State Senator Jean White, who had supported civil unions for same-sex couples. The photo, digitally altered to strip out the New York City skyline, appears under the words “State Senator Jean White’s idea of ‘family values?’”

Public Advocate had defended its unauthorized use of the image on the grounds that others “make fair use of our materials.”

SPLC has previously labeled Public Advocate “a hate group,” and noted in a statement released yesterday that it has “a history of attacking the LGBT community.” The statement quotes Christine Sun, deputy legal director at the SPLC, saying that the alteration and unauthorized use of Hill’s photo was “morally reprehensible.” Sun says, “This latest attack is the most vicious yet and should serve as a warning that your personal photos are not safe from anyone willing to stoop to the vilest level of harassment.”

In the SPLC statement, Hill says she took the engagement photo to document her clients’ love. “When I saw how my image was used, I was sad for Brian and Tom. I was angry that someone would take my work, distort it and use it to reflect the opposite of what it was meant to express.”

Related Article
Wedding Photographer Might Sue for Copyright Infringement Over Anti-Gay Attack Ad

Copyright infringement is so commonplace these days, it’s hard to shock us, but this flyer posted around New York’s East Village managed to do it.  The flyers for Centaur Moving show copies of Don McCullin’s award-winning photo of a Turkish woman mourning her dead husband, killed in the civil war in Cyprus in 1964. What does a photo of grief, death and war have to do with furniture movers?

After photographer Ashley Gilbertson tweeted a photo of the flyer, we called Centaur Moving for information (and walked over to Second Avenue to grab a camera-phone pic of one of the flyers). A man who identified himself only as Roger, the company’s manager and dispatcher, answered the phone. Roger said that he had hired an artist who does guerilla advertising, and knew nothing about the ad. Asked if he knew the origin or content of the photo, he said, “I have no idea. I just gave him a few bucks.” We have been unable to reach the guerrilla ad guy.

In PDN’s “Heroes and Mentors” issue, McCullin talked candidly about his frustration that his 50-year career as a photojournalist has done so little to end violence or conflict, and the psychic toll that he has paid for witnessing the horrors of war. It’s hard to imagine he envisioned the fruits of his labors being misappropriated to promote a man with a van.

The flyers stirred some quick action. When photographer Yunghi Kim saw Gilbertson’s Twitpic, she got in touch with Jeffrey Smith at Contact Press Images, the agency that represents McCullin. Smith says, “I responded by sending a cease and desist letter” to the moving company on Sunday. We took a quick look this morning, and the flyers seem to have been torn down—though whether they were removed by a contrite Roger, a rival moving company, or outraged photographers, we’ll never know.

Related article
Heroes & Mentors: Don McCullin and Eugene Richards

The estate of iconic music photographer James “Jim” Marshall filed a copyright infringement claim against Thierry Guetta (aka Mr. Brainwash) and Google for the unauthorized use of his images for advertising purposes. The brief states that copies of Marshall’s photos were used as part of a promotion for Google Music, a new online music service, as well as in derivative works.

According to the brief, for a Google event held at Guetta’s studio, the artist designed a backdrop using blown-up copies of photos Marshall made of musicians John Coltrane and Jimi Hendrix, which “constituted unauthorized reproductions and display” of the images. The backdrop was placed to the side of the stage where the announcement for Google Music was made, and therefore Google is also liable for copyright infringement since the images were used to promote its new product, Marshall’s estate claims.

Additionally, the brief states that Guetta used five of Marshall’s photos to make derivative works, some of which he is currently selling on his Web site. It appears that Marshall’s images of John Coltrane, Sonny Rollins and Stanley Turrentine, as well as his group shots of Thelonius Monk, Dizzy Gillespie, and Gerald Wilson, and Jimi Hendrix and Brian Jones, were screen printed on to paper and then altered by either changing the color palette or adding words to the background.

The brief is asking that all infringing works be turned over to the estate and that all profits derived from the infringing works be awarded to the estate. Additionally, its asking that any damages, attorneys’ fees and costs related to the trial be reimbursed.

This isn’t the first time Guetta has been accused of infringing on a photographer’s copyright. In June 2011, a federal judge ruled in favor of photographer Glen E. Friedman, who claimed that his image of hip-hop group Run-DMC was used as the basis of several works by Guetta. A settlement with Friedman has been reached, but the terms were not disclosed.

Additionally, Guetta has another copyright claim pending from photographer Dennis Morris. While Guetta admitted he did use Morris’s photo of Sex Pistol’s bassist Sid Vicious in derivative works of art, he claimed he did not know it was a copyrighted image. The two parties are currently working on a settlement agreement.

Neither Guetta nor Google responded immediately to a request for comment.

Update 4/27/12: Jim Prosser, manager global communications and public affairs for Google, responded to our request for comment by stating that Google has not received a copy of the complaint yet and therefore he cannot comment on it.

Correction: An earlier version of this post incorrectly stated that Sid Vicious was the drummer for the Sex Pistols. The text has been corrected.

Related Articles:

Judge Rules for Photog In Copyright Suit Over RUN DMC Photo

Here’s a new installment in the long saga of AP’s copyright infringement suit against artist Shepard Fairey, creator of the Obama “Hope” poster. Fairey has plead guilty to a federal criminal charge for destroying documents, falsifying evidence “and other misconduct” in his civil litigation with Associated Press two years ago, the US District Attorney in Manhattan has announced.

Sentencing is scheduled for July 16. Fairey faces a maximum of six months in prison, and fines of $5,000 or more.

The full news story, including excerpts from the US Attorney’s statement on Fairey’s plea, is now on PDNOnline.

A snowboarding photographer battled a company for months trying to get them to acknowledge that they had used his photo without permission or payment. The photographer, Chris Messervey, has now published his months of correspondence with the company on his blog in hopes of getting satisfaction.

Standard practice for snowboarding photographers is to accompany riders on their trips into the mountains, make images documenting the action, and then license those photographs to magazines and companies who sponsor the riders and whose gear appears in the photos.

Messervey did just that when he traveled this past February to Revelstoke, British Columbia with some snowboarders who were working on a film for the 2010–2011 winter season.

One of the riders mentioned to Messervey that one of his sponsors, the snowboarding apparel company Grenade, were looking for photographs of the rider in the next season’s gear. “It’s pretty standard practice that after shooting riders, you preview shots with them, they show their sponsors, if their sponsors are feeling the shots, they buy them for a price based on how they intend to use them,” Messervey wrote in a blog post recounting his experiences with Grenade.

The rider showed one of Messervey’s images to Grenade, who published it on their blog. Messervey didn’t receive a request for permission to publish the image, nor was he credited.

When he approached Grenade about payment for use of the image, a representative of the company was initially cordial, Meservey says, but put him off. Months later, he had still not received payment. The correspondence between Messervey and the company, which Messervey published on his blog, escalated into acrimony on both sides and threats of legal action, and ended with the company’s CEO accusing Messervey of being unstable simply because he was trying to protect his work.

Grenade has since taken Messervey’s photograph down off its site. He has still not been paid for the usage.