Artist Richard Prince is battling a recent copyright infringement lawsuit over his “New Portraits” exhibit, which showcased photos obtained from the social media platform Instagram.
Prince has been a controversial figure in the art world since the late 1970s. His artistic milieu is “appropriation art,” the post-modern technique of re-using images from other artwork with minimal changes. The technique gained popularity in the 1960s with the works of pop artists such as Roy Lichtenstein and Andy Warhol. The movement’s works were characterized by criticizing facets of American culture, such as consumerism or celebrities.
The “New Portraits” exhibition consisted of thirty-seven Instagram screenshots, blown up and inkjet printed on six-foot-tall canvas. The New Portraits series contained a myriad of subjects, from unknown individuals to celebrities, such as Kate Moss and Pamela Anderson. He did not ask the Instagram users for permission before using their photos in his work. Prince refers to the works as “screen saves,” describing his artistic process as spending hours on Instagram, poring through various accounts, screenshotting, and deleting pictures.
Aside from resizing the images, Prince did not alter the Instagram photos, but instead added text to the bottom of the works, in the form of brief Instagram comments. The artist described his comments as “Birdtalk. Non sequitur. Gobbledygook. Jokes. Oxymorons. ‘Psychic Jiu-Jitsu.’” In one piece, Prince commented, “No Cure, No Pay,” alongside an emoji. Works in the New Portraits exhibition sold at the Frieze Art Fair for $90,000 each.
Photographer and visual artist Donald Graham filed suit against Prince, in Graham v. Prince, et al., alleging that one of the pieces from the New Portraits exhibit constituted infringement of his copyrighted photograph. Graham is the artist and copyright holder for the 1997 black and white photo, “Rastafarian Smoking a Joint,” which appears in one of Prince’s Instagram portraits. Prince used the image posted from a third party’s Instagram account, @rastajay92, without Graham’s permission. The artist added the comment “Canal Zinian da lam jam” to the bottom of the work.
The complaint alleges that Prince’s use of Graham’s copyrighted photo was not modified enough to be considered an original piece of artwork and infringes upon his exclusive rights.
Graham named Prince, Gagosian Gallery who displayed and sold the works, and gallery owner Lawrence Gagosian as defendants, but not the Instagram user who reposted the picture.
Prince asserts that his use of the image qualifies as fair use, a defense to copyright infringement. The doctrine of fair use allows individuals to use others’ work without permission or payment for certain limited purposes, including criticism, commentary, and research, among others. There is no bright line rule to determine whether the defense applies. Instead, courts use four factors set out in the Copyright Act of 1976: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is 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.” Courts determine fair use on a case-by-case basis, weighing the four factors together to determine whether the defense applies. Generally, “transformative” uses, or uses that have added additional meaning or creativity, are more likely to be considered fair use.
In 2013, Prince was the subject of another copyright infringement lawsuit involving Rastafarian artwork. French photographer Patrick Cariou filed suit against Prince for copyright infringement over photos from his book Yes, Rasta, which were incorporated into paintings from Prince’s “Canal Zone” exhibition. The case similarly questioned whether Prince’s work was transformative enough to qualify as fair use. In the Canal Zone series, Prince’s work used numerous photographs from Cariou, adding paint to faces, cropping out backgrounds, and incorporating new objects such as guitars to create a collage effect. Cariou prevailed in district court, obtaining a court order for Prince to destroy the remaining pieces. However, on appeal, Prince successfully argued for the fair use defense, resulting in the court finding that twenty-five out of thirty paintings were transformative. Cariou v. Prince ultimately ended in settlement, leaving no precedent or guidance for future copyright cases. Prince’s attorneys have also asserted that Graham’s allegations are an attempt to re-litigate the Cariou case.
The outcome of Graham v. Prince, et al. could likely have broad implications for the intersection of copyright law and contemporary art. If Prince prevails, the holding could considerably stretch the boundaries of fair use. Alternatively, should Graham prevail, artists who rely on reusing others’ work could be considerably chilled from producing such works in the future.