In 1977, Dennis Morris photographed Sid Vicious of the Sex Pistols in Sweden. The photograph was subsequently published in a 2001 book, on the internet, and exhibited in London in 2004 in conjunction with the sale of Morris’ prints. Thierry Guetta, also known as “Mr. Brainwash,” is an appropriation artist known for his works which modify images of celebrities. In dispute in this case were seven of Guetta’s works that modified Morris’ photograph of Sid Vicious by surrounding Vicious’ head with a variety of scrawled color patterns.

At trial, Guetta admitted to copying the Sid Vicious photograph, but claimed that his works were not infringing because the modifications sufficiently transformed the originals to constitute fair use. In response, the district court weighed the four factors of the fair use analysis. First, the district court found that Guetta’s addition of colors to the fringes of Morris’ images did not sufficiently transform Morris’ original photograph: “[It] is not apparent that Defendants’ works add something new, have a further purpose or are of a different character due to a new expression, meaning, or message. The Photograph is a picture of Sid Vicious making a distinct facial expression. Defendants’ works are of Sid Vicious making that same expression.”

Applying the second fair use factor, the district court held that Morris’ posed portrait of Sid Vicious constitutes a creative work warranting strong copyright protection. Third, the district court found the amount and substantiality of the portion used from the original in Guetta’s works to be significant. The heart of Morris’ photograph is the pose and facial expression of its subject, which is also the central element of Guetta’s works. The district court further concluded that Guetta’s addition of material was irrelevant to this analysis.

Lastly, although the district court concluded that there was no evidence Guetta’s works had produced an adverse market effect for Morris, it held: “any dispute over the market effect is immaterial because a lack of harm would not change the determination of an unjustified use under the first factor.” Taking all of these factors into consideration, the district court concluded that Guetta’s works were not fair use and granted summary judgment to Morris and co-defendant It’s a Wonderful World.  After the Supreme Court’s analysis of the first factor in Andy Warhol Foundation for the Arts v. Lynn Goldsmith, courts are likely to put less emphasis on whether the defendant’s work added new meaning or message.

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