Plaintiff Dennis Morris is a renowned photographer and artist well known for his photographs of musicians and cultural icons. Morris is the owner of all copyrights in photographs he took of musicians Sid Vicious and John Lydon of The Sex Pistols band. Morris filed a copyright infringement lawsuit against artist Elizabeth Peyton and retailer Target for unauthorized use of the photographs in creating derivative artwork reproduced on merchandise sold throughout the United States. A side by side comparison of Morris’ photographs and the accused artwork is provided below:
The complaint seeks unspecified damages, but seeks “disgorgement of each Defendant’s profits directly and indirectly attributable to said Defendant’s infringement of the Subject Photographs” in addition to attorneys’ fees and costs.
To establish copyright infringement, Morris must prove (1) ownership of a valid copyright, and (2) copying by defendants of protectable elements of the work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Where, there is no direct evidence of copying, the second element requires plaintiff to prove both that the defendants had access to the plaintiffs copyrighted work and that there is substantial similarity of protected expression between the copyrighted work and defendants work. Three Boys Music Corp., 212 F.3d at 481. Morris’ photographs are ubiquitous and a Google image search for “The Sex Pistols” produces the subject photographs in the results. Further, where the accused works are strikingly similar – e.g., reproduction of the artwork from the photographed shirt in the accused work, access may be automatically established. Three Boys Music Corp., 212 F.3d at 485 (even where there is no proof of access, the copyright holder may prove copying by showing that the copyright holder’s and alleged infringer’s works are “strikingly similar.”)