Here's What Happens When a Judge Evaluates Sex Pistols Art for 'Purpose'

Today's question: Should federal judges play art critic?

Consider a ruling handed down on Monday by U.S. District Court judge Dolly Gee.

She presided over a dispute involving photographer Dennis Morris who snapped photographs of the Sex Pistols for his book on the punk rock band. A few years ago, an artist named Russell Young discovered one of the photographs on the Internet and used it to create a few pieces of art.

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Morris sued Young.

Below is a look at what was in dispute. Morris' original photo is on top, and two of Young's art pieces are beneath. On the left is a work entitled "Sex Pistols in Red" and on the right is a work entitled "White Riot + Sex Pistols." Which is better?

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The question, "Which is better?" will no doubt prompt many art savants to cringe. It's a rather subjective query that depends on one's taste. A more delicate way to put the question might be to ask: Which of the two art pieces conveys more meaning?

In the world of anti-establishment punk rock, that question is probably still nonsense. But in a court of law, as of Monday, there's an answer.

Appropriation art, or the use of pre-existing images to create something transformative, has blossomed over the years. And thanks to copyright statutes, artists in this genre like Richard Prince and Jeff Koons have faced lawsuits alleging infringement. The advent of the Internet, where original photographs are so readily available, has also aided in the genre and caused legal trouble for artists like Shepard Fairey and Thierrey Guetta. And now, Russell Young.

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In copyright law, there's the concept of fair use -- allowing exploitation of copyrighted material in certain circumstances -- and one of the factors analyzing fair use is the "purpose and character" of the use. In short, is it transformative?

To make that determination, a judge has to figure out whether the new work adds something new, with a further purpose or different character, altering the first work with new expression, meaning, or message.

And here's where it gets interesting. It's possible that the same judge can take a look at two art pieces by the same artist and decide that one isn't worthy but the other might be.

In fact, that's what happened on Monday.

Regarding "Sex Pistols in Red," Judge Gee writes that it...

"appear(s) to be little more than reproductions of the Subject Photograph with minor alterations. By his own admission, Young only modified the Subject Photograph by adding tint, slightly cropping, and changing the medium to create these pieces... therefore, [it] add(s) only marginal artistic innovation to the Subject Photograph to change the aesthetic expression of the work."

But on the other hand, Judge Gee sees something more redeeming about "White Riot + Sex Pistols."

She writes...

"The piece incorporates three distinct elements: a Union Pacific logo, the words 'White Riot' in graffiti with red stars, and two images of the Subject Photograph positioned side-by-side. The images of the Subject Photograph are distorted by the graffiti words imposed over them, and the Union Pacific Logo looms above them, seemingly connected to the other elements although how so is not clear. Thus, unlike the other two Accused Works, 'White Riot + Sex Pistols' incorporates images beyond the band itself and arranges them such that the composition may convey a new message, meaning, or purpose beyond that of the Subject Photograph."

As a result of the ruling, Morris gets a summary judgment victory for the image up above on the left but not for the image to the right. The judge decides for that particular art piece, "a jury could reasonably conclude that the work constitutes a fair use."

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