USDC C.D. California, May 27, 2011

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  • District court grants summary judgment in favor of plaintiff copyright owner, finding that defendant’s works, all of which contained altered reproductions of a photograph of the music group Run-DMC taken by plaintiff, were substantially similar plaintiff’s work and were not entitled to fair use protection.

Plaintiff Glen E. Friedman took a photograph of the famous hip hop music group Run-DMC (the “Photograph”), depicting the three members standing shoulder to shoulder and wearing black Stetson hats. Plaintiff published the Photograph in a book and obtained a copyright registration certificate for the Photograph. Defendant Thierry Guetta, an artist who often incorporates pre-existing images into his artwork, found the Photograph on the internet and, without knowing that it had been published in plaintiff’s book, created at least four types of works (the “Four Works”) that incorporated aspects of the Photograph. Each of the Four Works incorporated the photograph in different ways. Some of the works were sold, some were put on public display, and others were incorporated into free postcards that were publicly distributed.

Plaintiff filed suit alleging that defendant infringed his copyright by creating, reproducing, displaying, and selling works incorporating the Photograph. On cross motions for summary judgment, the court granted plaintiff’s motion and denied defendant’s motion, finding that defendant’s reproductions of the Photograph were substantially similar to plaintiff’s copyrighted work and that defendant could not establish fair use.

While defendant did not dispute that plaintiff owned the copyright in the photograph, he argued that the elements he copied from the Photograph – the artists’ pose, their clothes and demeanor, and the background of the picture – were not original and therefore not protectable. The court disagreed, noting that the protectable elements of a photograph generally include selection of subject, posture, background, lighting, and even perspective alone. The court concluded that plaintiff met the threshold for an original work by selecting the subject, arranging it, and making related decisions about “light and shadow, image clarity, depth of field, spatial relationships, and graininess.” According to the court, “and that all of these “particular artistic decisions commutatively result in the Photograph.”

The court then addressed the issue of substantial similarity: “Having considered the defendant’s admission that he directly altered a digital copy of the Photograph and the striking similarity of the Four Works with the Photograph, the court concludes that no reasonable fact finder could find that the works are not substantially similar[.]”

Applying the “extrinsic” and “intrinsic” tests, the court observed that the Four Works plainly borrowed original elements of plaintiff’s Photograph, including the selection of Run-DMC as the subject, the arrangement of the three artists, their poses, and their accessories and outfits, the lighting, and the perspective. Although the court acknowledged that defendant had altered the Photograph by removing the background and changing the color, it characterized these alterations as “minor changes” that did nothing to “alter the fact that the distinct figures in Plaintiff’s Photograph remain clearly visible and identifiable.” It held: “Here, Defendant admits that the Four Works were created by making small alterations to a digital copy of the Photograph, and the court concludes that the Four works are substantially similar to the Photograph. Because Defendant has copied Plaintiff’s Photograph without authorization, Plaintiff is entitled to summary judgment in his favor.”

Defendant also argued that his use of the photograph was protected by the fair use doctrine. The court disagreed.

The fair use doctrine confers a privilege on people other than the copyright owner to use the copyrighted material in a reasonable manner without the consent of the copyright owner. In determining whether a use is fair, courts consider: (1) the purpose and character of the use, including whether that use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Applying these factors, the court concluded that defendant could not establish fair use. In the court’s view, defendant did not offer a “transformative alternative use” of the Photograph. The court also concluded that the other fair use factors also favored plaintiff, as the Photograph was taken for artistic purposes, was creative in nature, and fit squarely within the core of copyright protection. The court also found that the degree to which defendant borrowed elements from the Photograph was both quantitatively and qualitatively substantial. Finally, the court concluded that plaintiff’s commercial and artistic use of the photograph competed directly with defendant’s use.