Morris v. Young

925 F.Supp.2d 1078

Dennis MORRIS, Plaintiff,

v.Russell YOUNG, et al., Defendants.

Case No. CV 12–00687 DMG (FMOx).

United States District Court, C.D. California.

Jan. 28, 2013.

Douglas A. Linde, Erica A. Gonzales, The Linde Law Firm, Los Angeles, CA, for Plaintiff.

Neil Vohra, Richard H. Zaitlen, Pillsbury Withrop Shaw Pittman LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO COPYRIGHT INFRINGEMENT [DOC. # 21]

DOLLY M. GEE, District Judge.

This matter is before the Court on Plaintiff Dennis Morris' Motion for Summary Judgment as to Copyright Infringement, filed October 19, 2012 [Doc. # 21]. The Court conducted a hearing on the Motion on January 11, 2013. Following argument, Defendant Russell Young filed supplemental briefing on January 16, 2013, addressing Cariou v. Prince, 784 F.Supp.2d 337 (S.D.N.Y.2011) [Doc. # 28]. Having duly considered the arguments of counsel as presented in their papers and at the hearing, the Court hereby GRANTS IN PART and DENIES IN PART Morris' Motion for Summary Judgment.

I.PROCEDURAL HISTORY

On January 1, 2012, Plaintiff Dennis Morris filed a Complaint against Defendant Russell Young seeking damages for copyright infringement and an injunction enjoining Young from further infringement of Morris' photograph (“the Subject Photograph”) of the musicians Sid Vicious and Johnny Rotten of the punk rock band, the Sex Pistols [Doc. # 1]. On April 16, 2012, Young filed an Answer to the Complaint, raising various defenses [Doc. # 8]. Morris filed the instant Motion for Summary Judgment on November 26, 2012.

II.FACTUAL BACKGROUND

The following facts, viewed in the light most favorable to Young solely for purposesof this Motion, are taken from the evidence presented in support of and in opposition to the Motion. The facts set forth below are undisputed unless otherwise noted.

Morris is a photographer and artist. (Compl. ¶ 6; Declaration of Dennis Morris ¶ 1 [Doc. # 22].) Morris has published two books: Never Mind the B*ll*cks: A Photographic Record of the Sex Pistols Tour (United Kingdom, 1991), published with copyright notice; and Destroy: Sex Pistols 1977 (United Kingdom, 1998). (Declaration of Douglas A. Linde, ¶¶ 3–4, Exhs. 2–3 [Doc. # 23]; Declaration of Richard H. Zaitlen, ¶ 5, Exh. D at 23 [Doc. # 25–6].) Both books were originally published in the United Kingdom. ( See Linde Decl. ¶ ¶ 3–4, Exhs. 2–3.) The books contain original photographs of the Sex Pistols on tour, taken by Morris, including the Subject Photograph, which depicts Sid Vicious and Johnny Rotten performing on stage. (Linde Decl. ¶¶ 3–4, Exhs. 2–3; Morris Decl. ¶ 1.) Morris asserts that he is the sole author and owner of the Subject Photograph. ( Id. at ¶¶ 1–3.) In addition to the two books, Morris has distributed the Subject Photograph through a website called “camerapress.com.” (Zaitlen Decl. ¶ 5, Exh. D at 25.) Morris obtained United States copyright registration certificates for the two books in 2011. (Linde Decl. ¶¶ 3–4, Exhs. 2–3.)

Young is an artist and former photographer. (Declaration of Russell Young, ¶ 3 [Doc. # 25–8].) Sometime in the mid–2000s, Young created a series of works based on images of the Sex Pistols that he found on the Internet. ( Id. at ¶ 4.) None of the images Young used in this series contained copyright notices, and Young therefore believed they were in the public domain. ( Id. at ¶ 5–6, Exh. 2.) Among the unmarked images Young found on the Internet was the Subject Photograph.¹ ( Id. at ¶¶ 5, 12, Exh. 1.) In a deposition on November 20, 2012, Young stated that he does not recall exactly how he came upon the image of the Subject Photograph on the Internet, but he believes that he found it “multiple times.” (Linde Decl. ¶ 2, Exh. 1 (“Young Depo.”) at 41:10–18.)

Young used the image of the Subject Photograph he found on the Internet to create several works that are the subject of this case (together, “the Accused Works”). First, a piece called “Sex Pistols in Red” depicts the Subject Photograph, cropped slightly to more closely frame the subjects and tinted in a deep red color. (Young Decl. ¶ 14; SGD at ¶ 4.) Second, a piece called “Sex Pistols” depicts the Subject Photograph, printed using black enamel on an acrylic background. (Young Decl. ¶ 14.) According to Young, he altered the colors and shades, deepened the contrast between the black and white portions of the image, and added “grittiness” to the image by printing it in black enamel on an acrylic background. ( Id.) Young created several prints of this work, each of which was “hand-pulled, so no two works are exactly alike.” ( Id.) Third, a piece called “White Riot + Sex Pistols” depicts two images of the Subject Photograph side-by-side, with a Union Pacific logo and the words “White Riot” and red stars graffitied atop the images. ( Id. at ¶ 12.)

In his deposition, Young stated that he does not recall why he decided to use the Subject Photograph when creating the Accused Works or what his inspiration was to create the Works. (Young Decl. at 42:12–16.) He stated that he does not recall if he was “trying to make a ... particular statement” or offer an opinion when making the Accused Works, and he does not recall if he was trying to criticize anything through his use of the image. ( Id. at 42:20–43:15.) In contrast, in his declaration in opposition to the Motion for Summary Judgment, Young states that he creates art for “social commentary” on “social norms, values, and the like.” (Young Decl. ¶ 11.) He states that the red tint he applied to “Sex Pistols in Red” was intended to “amplif[y] the Sex Pistols punk-rock counter-culture image,” and the “grittiness” he applied to “Sex Pistols” was intended to mirror the grittiness of the band members themselves. ( Id. at ¶¶ 13–14.)

Prior to the initiation of this lawsuit, Young earned a total of $8,940 from sales of the Accused Works. (Young Decl. ¶ 10.)

III.LEGAL STANDARDS

Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c), (e) (1986)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010) ( en banc ) (“Rule 56 requires the parties to set out facts they will be able to prove at trial.”). “[T]he inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

IV.DISCUSSION

The Copyright Act bestows on the owner of a copyright certain exclusive rights, including the rights to reproduction, creation of derivative works, and distribution. 17 U.S.C. § 106(1)-(3). Morris alleges that Young engaged in copyright infringement by making, distributing, and selling derivative works from the Subject Photograph. (Compl. ¶¶ 16–22.) To establish copyright infringement, Morris must show (1) ownership of a valid copyright, and (2) the unauthorized copying of constituent elements of the copyrighted work that are original. See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). It is undisputed that Morris did not authorize Young to use the Subject Photograph in the Accused Works. (SGD ¶ 2.)

A. Ownership of a Valid Copyright

To address Morris' claim, the Court must first determine whether the Subject Photograph is entitled to copyright protection. To qualify for copyright protection, a work must be “original”; in other words, it must have been “independently created by the author” and possess “at least some degree of creativity.” Feist, 499 U.S. at 345, 111 S.Ct. 1282. Copyright in a work “vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). Under 17 U.S.C. § 410(c), a certificate of registration made before or within five years after first publication of the work constitutes prima facie evidence of the validity of the copyright and entitles the holder to a “rebuttable presumption of originality.” Works registered more than five years after first publication are not entitled to this presumption, but the Court may still consider the effect of a registration certificate issued thereafter when determining validity of the copyright. 17 U.S.C. § 410(c).

As a threshold matter, the Ninth Circuit has held that photographs are entitled to copyright protection. Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1177 (9th Cir.2012) (photographs of a secret celebrity wedding considered creative and entitled to copyright protection); Ets–Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1077 (9th Cir.2000) (photographs of a vodka bottle to be featured in advertisements were entitled to copyright protection under “the longstanding and consistent body of case law holding that photographs generally satisfy this minimal standard”...