Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies

from the is-it-art? dept

You may recall over the past few years, our coverage of a key “fair use” lawsuit involving “appropriation artist” Richard Prince. That case involved Prince taking photos of various Rastafarians from a book by Patrick Cariou, and then adding a bit of stuff to the photos, declaring it art and profiting mightily. We were troubled by an initial ruling against Prince, which involved judges determining whether or not his work counted as “art.” Thankfully an appeals court went the other way and the case then settled before any further review.

Prince is now making more news with his new gallery exhibit that appears to involve him screenshotting various selfies posted to Instagram, adding a “comment” to them, blowing them up and printing them out to put on a gallery wall. Then, you can buy them for around $100,000 a piece. And, no, Prince did not communicate with or get permission from anyone whose photos he is using. Here’s just one example (as highlighted in the linked Fortune piece). An Instagram user named Doe Deere discovered that this selfie then appeared in Prince’s latest showing:

A photo posted by Doe Deere (@doedeere) on

And here’s her post about the fact that her own picture had been displayed and then sold for ~$90,000.

As you can see, Doe Deere says she’s not going to sue. And at least one other Instagram user has said that he too won’t sue — even though he’s clearly pissed off about it. Sean Fader, a struggling artist, noted that suing would actually play into Prince’s own hands, making Prince “look like he?s thinking about rights in digital spaces, and that the work is questioning authorship in contemporary society.” Instead, Fader has decided that if an appropriation artist is going to appropriate his work, he might as well appropriate it right back:

?I?m really interested in the idea of re-appropriating my own work and taking the work out of the frame that he?s put it in, re-engineering it to continue the conversation that I was interested in from the beginning, and shifting the work back to that space,? Fader said. ?I struggled for a while to decide how I felt about it. When I went and saw it I was fuming. I would be psyched to be appropriated into work that was good. I just think the work is flat. It flattened the work in a way that I was not thrilled about its denial. By not communicating with me, by not talking to me, he denied every level of shared authorship, or engagement, all of those things that were so important to me in the work. That?s what irked me about the whole thing. So Prince made his move, now I?ll make mine.?

How’d he do that? By sending out a press release, telling people to visit his work in a new exhibit “organized” by Richard Prince.

So far it doesn’t appear that anyone has sued him — but some of the commentary on this is completely inane. The Washington Post had a totally clueless story suggesting that your Instagram photos aren’t really yours.

Frankly, this does seem like a jackass move by Prince, but (no matter what Fader feels above) it does raise questions about “rights in digital spaces” and — more particularly — art. Part of the reason why Prince won his case over the Rastafarian photos was because his artwork was deemed transformative — not in terms of how the artwork looked necessarily, but the context of the artwork itself. And that’s definitely true here. Whether or not you think it’s any good — or whether or not you think that Prince is a jackass for the way he went about putting this work together — it doesn’t change the fact that he’s the one attempting to take these Instagram photos and turn them into “high art.”

In some ways, it reminds me of the differences between invention and innovation. Invention is coming up with something new. Innovation is making something that the world wants. Yes, the Instagram users who created these photos made the works — but Prince made them such that people were willing to pay $90,000 for them. That is “transformative” in more ways than one — even if you are reasonably perplexed by what kind of sucker might pay that money. The fact is that he convinced people to do so, and that’s a form of innovation.

Would that be enough to survive an actual lawsuit should one arise? Perhaps not. Fair use cases are almost always a total crapshoot, and it’s not hard to see how a jury and judges would stack up the four factors in a variety of ways that could lead to either result. But, it still seems worth considering what kind of loss has actually happened here? Yes, it feels slimy by Prince. And the fact that he’s making $90k a pop for selling these images (without sharing those proceeds with the original photo creator certainly contributes to that really slimy feeling). But it’s not as if any of these images on their own would be seen as worth that. It is — for better or worse — the fact that Prince chose to highlight them that suddenly made them worth so much money. That may not be “fair” — but it might be fair use.

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Comments on “Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies”

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bureau13 (profile) says:

But are the works really transformative?

Richard Prince is a no-talent hack. I thought so in the previous case, and I think so more now. I see nothing new or original or transformative in what he’s done. It feels more like he’s poking the whole fair use discussion right in the eye. I’m not sure how I feel this should be treated, legally. The real problem, however, is that there are people who will pay for this crap. I guess if he can skirt the boundaries of the law and find people who want to give him large sums of money, more power to him…but I like the idea of the original authors finding a way to beat him at his own game, and I hope they’re successful.

Leigh Beadon (profile) says:

Re: But are the works really transformative?

It feels more like he’s poking the whole fair use discussion right in the eye.

The thing is… I kind of think that’s something that badly needs to happen.

Just now, I looked at about 5 different blog posts which, though they were heaping the hate on Prince, noted that “he is protected by fair use.” That’s amazing! I have never seen so many random opinion pieces even acknowledge the existence of fair use, let alone see it as a foregone conclusion! Now, it’s odd and ironic and potentially bad that they are also deciding they don’t like fair use because of this, but I’m not so sure that opinion will hold upon deeper inspection. If a poke in the eye is what it took to start a real conversation about fair use, I’m all for it…

Leigh Beadon (profile) says:

Re: Hardly

Because the concept of a “transformative work” does not merely apply to alteration of the content itself. It is a question of whether the new work “supersedes” the old work and replaces it (not transformative) or whether it changes the “purpose, character and meaning” of the old work. This can hinge on questions of context, not just content.

For example, a critic who quotes large portions of a work in an analysis or review does not alter the content quoted, but does place it in a new context. The analysis or review serves a new purpose, different from the original work itself, and does not serve as a substitute for it, and thus is considered transformative.

There’s still debate to be had about whether what Prince did qualifies, but the simple fact that “the picture itself was not at all altered” does not immediately disqualify it either.

Leigh Beadon (profile) says:

Re: Re: Re:3 Hardly

I suspect you’re being glib. Virtually every single thing about the “purpose, character and meaning” of songs on your phone and songs on a CD is identical. Conversely, there are clear differences in purpose, character and meaning between these photos on Instagram and these photos as a high-end gallery exhibit.

Now, I absolutely grant you: it can be argued that those differences still do not elevate to the level of a transformative work. But if it was decided by a judge that they do — a decision I would personally support — it would by no means “gut copyright law” or render straightforward music piracy legal under fair use.

Leigh Beadon (profile) says:

Re: Re: Re:5 Hardly

Many a work, many a whole artistic movement, has been similarly derided. Above you gave credit to DuChamp — but how many people have called his work worthless over the years?

I’m no art expert, and as far as I can tell art experts are never unanimous. Judges are neither. So I’m not prepared to rule out artwork just because I can’t personally see its value (which I admit I can’t in this case), nor do I think anyone else should be able to. The question to me is not whether this work needs to exist, but whether the idea that it’s illegal would cut off avenues of art that I believe should be explorable. I can’t find any way to draw an objective line between this and other appropriation/remix art that I love and believe to be incredibly original and culturally valuable – whether that’s Mr. Burns: A Post-Electric Play (which I recently saw and was amazing) or It Takes A Nation Of Millions To Hold Us Back (which never would have existed if it didn’t slip through before the courts clamped down on transformative music) or Mother Of All Funk Chords (which is still around, unchallenged, solely by the virtue of the kindness of strangers).

For those things and more like them, I’ll gladly live with Richard Prince.

MadAsASnake (profile) says:

Re: Re: Re:6 Hardly

Oh – I agree – but that is not my point. Consider another transformation that I certainly performed: copying vinyl albums to tape, so I could listen on my walkman in places I never could before. Today, I can watch movies on my phone while commuting, a wildly different context to a cinema (both things that get me called a thief by various protectionist bodies). Transformation does not need someone to call themselves an artist, to be called art, nor be put in a high end gallery. The works you discuss should be able to flourish, not by the kindness of strangers but by an enlightened copyright law – not the monster its been transformed into today. So yes Richard Prince should be free to do this, just as I am free to deride his work as minimally transformative and lacking in any other significant value. About the only commentary of note here is that you can do this to the work of little people – try that with Disney or Lucas and see what happens. Its just insulting. Its funny you look for an objective line in such a subjective area – but I think we agree that the line should err on the permissive side. As I said, that is my opinion.

Leigh Beadon (profile) says:

Re: Re: Re:7 Hardly

Its funny you look for an objective line in such a subjective area

On that front you misunderstand me. My point was that I agree: there is no objective line to be drawn, which is why I say it’s important for Prince’s work to be fair use — not because I particularly care if I get to see that work itself, but because I see no way that anyone could draw a line between it and work I do care about.

Anonymous Coward says:

Re: Re: Re:5 Hardly

The transformation here is in the layout. Everything around the photo is the artists original work, the layout, the text, the scale ( as I say below these are enormous). I also (below) had a look at how much it cost to print a canvas this big and have it stretched on a frame – it’s in the $500 – $600 range depending on how thick the frame is.
So this is maybe like taking the songs off a cd and copying them to another cd if the cd you copy them to is 160cms in diameter and you add a song or two of your own at the end.

Having said that, put a 160cm CD in a NY gallery, It’ll sell.

Roger Strong (profile) says:

Re: Re: Hardly

In that case, the “transformative work” he’s done is just another name for “format shifting.”

It’s as though I were to rip Mad Max: Fury Road from Blu-Ray and sell copies without permission as convenient Mpeg downloads. As my own “transformative” work. It’s an already well-debated and settled issue, and the courts would not side with me.

Nor would they even if I attempted to add new meaning without substantially altering the original work. Say, by declaring Fury Road to be my continuation of the Driving Miss Daisy franchise.

MarcAnthony (profile) says:

Unfair use of fair use

These works are derivative, rather than transformative, and it’s a slap in the face to legitimate fair uses cases for someone to directly profit from another’s photo without permission. What is fair about this use? Does it inform education? Is it parodic? No. It isn’t. I would not be so care fee, were this done with my own photo. “Appropriation artist” = con artist.

jameshogg says:

If you’re paying $100K for something you know you can get by much cheaper means, you are a moron. There’s no other way of putting it. That’s the simplest explanation.

And if anything, copyright makes this WORSE. The fools paying this amount of money are doing so precisely because they think there is artificial scarcity behind these transformatives. That has to be why they are not going out to make their own copies of what they see in the exhibit in private, which is what any sensible person would have done.

If you want to help people to stop paying tons of money for copies of your work that were done without your permission, I recommend you eliminate the idea of permission for copies. That way there’s no incentive for folk to pay so much for something so forgeable. “If you paid for this free fansub, you were ripped off!” is not a slogan in fan-subbed anime for no reason.

We need to make the incentive to pay artists come from assurance contracts and not this farce of an economic system that is as good as a monetary system of JPEG dollars. If you pay the artist before the work is done, and millions of folk do it depending on popularity, you get a system where the artist is at liberty to ask for whatever price he/she wants without having to depend on nonsense like this where some copies end up more equal than others, and beyond any kind of control of the artist.

cpt kangarooski says:

Re: Re:

If you’re paying $100K for something you know you can get by much cheaper means, you are a moron. There’s no other way of putting it. That’s the simplest explanation.

No, that’s not it at all.

In the fine arts world, what really matters is provenance. The other day, Rothko’s “Untitled (Yellow and Blue)” sold for over $46 million. If you had tried to sell an absolutely identical painting to the second highest bidder, you probably would’ve been laughed at and thrown out.

This is because buyers only partly care about the work. They also care that the copy was made by the artist they’re interested in. An identical painting by John Smith is virtually worthless.

Even in appropriated art, provenance is what’s key. Duchamps famously went to a plumbing supplier, bought a urinal, signed it (with an obviously fake name) and displayed it as art. And that made it art. You could buy an identical urinal from the same production run and all it would be good for would be pissing in.

I assure you, there is very little interest in these pieces due to the actual photo involved. The economic value is entirely due to Prince’s personal involvement.

cpt kangarooski says:

Re: Re: Re: Re:

It’s not the signature either. It’s just the connection to a noteworthy person. A can of soup that was used by Andy Warhol as a model is worth more than an identical can of soup that wasn’t. (Especially since the soup would long since have gone bad)

Warhol’s signature isn’t required if the can is known to be authentic.

And this isn’t artificial scarcity. Provenance can’t be copied and its fraud to try to fake it.

MadAsASnake (profile) says:

Re: Re: Re:

And this brings out a curious breed – those for whom the “value” of their work consists entirely of provenance. Tracey Emin comes to mind… This guy looks like another one.

The difference to Duchamp is that he was perfectly capable of creating works of artistic merit as he was at borrowing: he earned his provenance.

John Fenderson (profile) says:

Re: Re: Re:

“In the fine arts world, what really matters is provenance”

In other words, art collectors are no different than autograph collectors, except that they don’t mind drastically overpaying for the signatures? I’ve long suspected as much.

But there are two types of collectors. The ones who are doing it as an “investment” (i.e. the ones who care about things like provenance) and the ones who are doing it because the art they’re buying speaks to them (i.e. provenance doesn’t mean nearly as much as whether or not they like the art for its own sake).

I think the former are being silly — but it’s their money to blow however they like. No skin off my nose.

Beech says:

Need +1 Meta

The only way to deal with this guy is to take his artwork up one meta-level. The affected instagrammers should:
1) make prints of “Price’s” artwork
2) add a caption of their own below his
3) try to sell the double-captioned print as their own work out side of Prince’s gallery.
4) profit.

There would be nothing Prince could do about it that did not look hypocritical to the max. Any argument he could levy against them would apply equally to himself. And if he did try to do anything about it, it would look like the instagrammers are the avante guarde how are thinking about “rights in digital spaces.”

Anonymous Coward says:

what would happen...

if the original photographers offer their own versions of what he’s selling…. for oh, $100. Severely undercutting his market, hell, advertise them side by side, and sell signed copies of “the original”.
“Don’t be fooled by imitations”, “buy the original artwork, by the original artist”

Anonymous Coward says:

Fair use and transformation don't matter

In this case, fair use and transformation don’t matter because i’m willing to bet none of these works were registered with the copyright office, which means they can only sue for actual damages, which are exactly $0.00

even if they were registered, they can sue for $50,000 per work, which if they are selling for $90,000 each, still leaves Richard up $40,000.

Anonymous Coward says:

This is not the whole story

The photos (according to The Guardian) have been taken, mostly, from the “Suicide Girls” instagram feed.
And if you look at Ms Deere’s photo you’ll notice that, unlike nearly everything else on instagram, there is none of her forearm in the lower part of the picture. Yes, it’s not a selfie, it’s a professionally shot photograph, meaning there is another layer of ownership.
Suicide Girls are offering the shots for $90, which is a bargain because what’s not clear in the photo is the scale of these things, they are very large
[inkjet on canvas, 65 3/4 x 48 3/4 inches (167 x 123.8 cm)]. At a print that size is up at the $500 mark, ($200 unstretched)
so $90 looks like a bargain.

M. Alan Thomas II (profile) says:

I’m not sure that a single comment, sometimes consisting entirely of a few emoji, really recontextualizes or comments on the original work sufficiently to create anything new. If he had altered the photos themselves, I might agree that he had a point. If he reproduced them not for sale but purely for the purpose of comment or reporting (however insignificant his contribution), I’d agree that that was okay. But to reproduce them for the purpose of selling them and adding little besides his signature, with no recontextualizing à la Duchamp’s Fountain (which took a supposedly ordinary, mass-produced thing and elevated it out of everyday life), feels insufficient to me.

But it’s not as if any of these images on their own would be seen as worth that. It is — for better or worse — the fact that Prince chose to highlight them that suddenly made them worth so much money.

By that logic, every hit song that’s a hit purely because a studio exec decided to make it a hit through marketing should be royalty-free. If someone paying attention to a work and thinking it’s worth money was the dividing line, any publisher could simply decide that they like an unpublished manuscript or online essay, slap an epitaph on it, and declare that they could now sell it without being encumbered by the original copyright; that’s roughly the level of highlighting and commentary being applied here.

Anonymous Coward says:

The Washington Post had a totally clueless story suggesting that your Instagram photos aren’t really yours.

In a world where the RIAA argues your CDs aren’t your CDs, Facebook argues your posts aren’t your posts, and tractor companies argue your tractors aren’t your tractors – is it really surprising someone would end up making the above conclusion?

Anonymous Coward says:

The four factors of fair use are:

“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

The character of the use is a totally commercial nature.

“the nature of the copyrighted work;”

The nature of the work was an Instagram photo. Photos in general are protected.

“the amount and substantiality of the portion used in relation to the copyrighted work as a whole;”

The whole thing was used.

“the effect of the use upon the potential market for or value of the copyrighted work.”

There really was no market for the copyrighted work.

That’s 3 factors against fair use and 1 strongly for it. It’s not just a counting contest, but I do not see how this is fair use.

Greevar (profile) says:

Re: Re:

This is the problem with automatic copyright. It makes everyone vulnerable to litigation, forcing them to make a case for fair use. This weakens fair use to the point of uselessness. Better that works be unprotected until registered. Then the first, and most important, factor for fair use would be “Is it registered?” Then we might finally start to see how tedious it is to apply copyright to every bit and byte in digital spaces.

Leigh Beadon (profile) says:

Re: Re:

I don’t think you can zoom past the first factor quite so quickly.

The “purpose and character” question is not solely about commercial use. It’s also where the question of transformative works are addressed. Prince’s past work using appropriated photos has been found transformative under that factor, and it’s possible this work would be as well. It’s also clear precedent in fair use law that if a work passes the transformative test and has a different “purpose and character”, the importance of all the other factors including commercial use is diminished.

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