It is not the first time artist Richard Prince has made headlines for appropriating others' artwork into his own without attribution or license. But this time, he has done so in a way that may have implications on the use of photographs posted on social media. He is being sued on one of the 37 pieces he displayed during a 2014 installation, described as essentially enlarged screenshots of posts by others to Instagram. They were part of an exhibition entitled "New Portraits" at the Gagosian Gallery in New York City. The pieces appear to be taken wholesale from Instagram accounts with Instagram names, likes, and comments visible. The complaint and its exhibits A and B provide a comparison of the works at issue: artist Donald Graham's original photograph, "Rastafarian Smoking a Joint," and the Prince piece (resized for comparison, below).
Left, "Rastafarian Smoking a Joint" by Donald Graham; right, the allegedly infringing work from Richard Prince, "New Portraits" exhibition.
According to the complaint, the Instagram account from which the screenshot derives is not that of the plaintiff, Donald Graham, but of an Instagram user who posted it without authorization. The only addition by Prince is a comment to the post. The complaint says Prince referred to his comments as, among other things, "'non sequitur,' 'gobbledygook,' 'jokes,' 'oxymorons,' [and] 'psychic jiu jitsu.'" It also quotes Prince as saying "'[c]opyright has never interested me'" and cites his history as an "appropriation" artist.
Appropriation art, for which Prince is known, in concept raises questions about the scope of copyright protection and the use of preexisting works afresh by other artists. Prince's earlier collection, "Canal Zone," incorporated photographs of Rastafarians by Patrick Cariou from Cariou's book "Yes, Rasta." The legal battle that ensued became famous in both art and legal circles. It placed these questions squarely before the Second Circuit. In its 2013 decision, the Second Circuit overturned a lower court ruling to find that the majority of those photos qualified as fair use because they were "transformative." See our blog post analyzing the ruling here. All 30 pieces of artwork at issue in the 2013 decision contained some degree of overlay of uncopyrighted elements. The Second Circuit remanded five pieces—those that seemed to alter the original photos the least—back to the district court for a determination whether they are transformative and qualify for protection under the "fair use" doctrine of 17 U.S.C. §107. That determination was never made on account of a later settlement among the parties.
Graham's complaint argues that Prince went even further in the "New Portraits" exhibit, with virtually no alteration of the original photograph save for the fact that it is taken from social media and therefore contains elements from Instagram's graphic user interface and some cropping. As a result, the lawsuit is set up to test the bounds of the fair use doctrine in the Second Circuit yet again based on the standards laid out in the 2013 decision involving Prince as well as more recent decisions on the scope of fair use, such as the 2015 decision finding the Google Books digitization project covered by fair use, discussed here. It seems the legal and art communities will be watching again, this time joined by social media gurus.
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