Richard Prince Finally Sued (Again) For Copyright Infringement Over His 'Instagram' Art

from the and-it-involves-more-rastas dept

Remember Richard Prince? He’s the well-known “appropriation artist” who was involved a few years ago in a key fair use case concerning his artwork. That case involved him taking photographs taken by another photographer, Patrick Cariou, of a bunch of Jamaican Rastafarians, and adding some minor modifications, blowing the images up and selling them as “art.” Whether or not you appreciate Prince’s art, the lawsuit raised some serious questions about whether or not it’s appropriate for judges to determine what is art and what is not. A district court determined that the works were infringing, but, thankfully, the appeals court overturned most of that ruling, declaring that the majority of Prince’s artowrk was fair use. Unfortunately, before the case could go any further, the case settled, so there was some murkiness over the precedent.

The next we heard of Richard Prince — who, it should be admitted, sounds like a real jerk — he had set up an exhibit where he had printed out people’s Instagram photos along with some fake “comment” text added by Prince himself, and was charging obscene amounts of money for them (~$100,000). As we noted, it was a jerk move to do, but it didn’t actually take anything away from the original works, and a number of people whose photos were used (even as they were upset about it) responded in a non-legal fashion — by using Prince’s exhibit to promote themselves. And in the case of the well-known Suicide Girls site (many of Prince’s Instagram appropriations had been from Suicide Girls), they offered their own prints with their own comments… for $90.

But, of course, eventually a lawsuit had to come, and now it’s here. And, would you believe it — it (once again) involves photographs of Rastafarians. You can read the complaint here. It’s been filed by photographer Donald Graham that apparently someone else (not a party to the lawsuit) had posted an unauthorized copy to Instagram (under the username “rastajay92”), when Prince then did his screenshot -> add nonsensical text -> presto it’s fine art trick thing, leading to this:

Graham is not happy to have found his work… er… InstaGrahamed this way. He and his lawyers sent a cease and desist and demanded the print be destroyed and any money made on it be handed over to Graham. It appears that was mostly ignored, and then to add insult to injury someone (either Prince, or more likely, the Gagosian Gallery where the works were displayed and sold) put up a billboard in Manhattan for the exhibit which included the image:
There’s also this weird apparent exchange on Twitter between Graham’s wife and Richard Prince:

On October 25, 2014, Mr. Prince responded to a post by Mr. Graham?s wife on the social media website Twitter (?Twitter?), in which she stated that Mr. Prince ?appropriated? Mr. Graham?s photograph into the Exhibition, with a reply post from his Twitter account: ?You can have your photo back. I don?t want it. You can have all the credit in the world.?

Prince, of course, has made it clear in the past many times that he doesn’t care in the slightest about copyright issues. He’s not interested in copyright or fair use or any of the academic aspects of this debate. He just wants to make his stuff. And he has no problem being surly and obnoxious about it as well.

Once again, as we’ve noted in the past, even if you don’t appreciate Prince’s “art,” it’s fairly obvious that some people do, because people do keep buying up his works, even at those crazy prices. And thus, whether or not you or I or a judge feels it’s art, it’s clearly art to some people. And that’s where it gets troubling that a court now gets to weigh in and determine whether or not this kind of art can be allowed or if it needs to be banned and destroyed. Prince is hardly a shining prince for fair use, but these lawsuits can have a huge impact on how fair use works.

As for Graham, I can totally understand why he feels upset, insulted or even ripped off. But as we saw when this exhibit first came out, it seems like there were a number of much better (and less expensive) ways of dealing with this than filing a copyright lawsuit. Graham could have easily used the situation to get extra attention for his own work. Instead, he’s choosing to rip apart someone else’s work.

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Comments on “Richard Prince Finally Sued (Again) For Copyright Infringement Over His 'Instagram' Art”

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33 Comments
Anonymous Coward says:

Re: Re:

This article makes me think that Mike doesn’t think it okay to take another’s work.

Let’s parse that.

> This article makes me think

Good!

> Mike doesn’t think

Boo!

> it okay to take

Don’t take things without permission.

> another’s work.

Oh… how exactly do you go about taking someone’s work? Work is energy expended. All you can do is take the product of that work, if it’s a physical object, or benefit from that work, if it’s a service.

In this case, Mike’s saying he think the guy seems like a jerk, but applauds the decisions by the court up until now to not decide on whether the physical work is art (protected) or not (derivative work).

I’d agree. Taking stuff is bad. Using ideas is good. Benefiting from others’ work without depriving them of anything is double plus good.

If I carve a pumpkin and place it in public view, you take a photo and upload it to instagram, and some guy in NYC grabs that photo, adds some comments, and puts a print of it in an art gallery for $1,000,000, I’m no worse off. Unexpected benefits are a GOOD thing, and I have no right to a portion of the profits just because I created the original art (which is debatable — the main object under discussion is a pumpkin I didn’t grow — I just took away bits of it. Do we bring Monsanto in as a copyright claimant too?).

Anonymous Coward says:

Sorry, this is one of the few times I really disagree with you here. This is not a transformative use of the work, it’s merely taking someone elses work and selling it for profit. Making up comments underneath the artwork isn’t enough, especially for the prices he’s selling at. Just because someone puts out their photos for free doesn’t mean you can turn around and monetize them for such incredible sums when the majority of the work was not yours. There is no statement, there is no transformation of the photo. It’s just the picture with some comments underneath.

Anonymous Coward says:

Re: Re:

Let’s look at the four main fair use factors.

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

The use is of a commercial nature. There’s “commentary”, perhaps, but it’s nonsensical. But don’t just take my word for it…

Mr. Prince referred generally to the “‘comments’” (quotation marks in original) he made to the original posts by other Instagram users prior to his screen saves alternatively as “non sequitur”, “gobbledygook”, “jokes”, “oxymorons”, “‘psychic jiu jitsu’” (quotation marks in original) and “inferior language” that “sounds like it means something.” Regarding the language of these “comments”, Mr. Prince posited the following: “What’s it mean? I don’t know. Does it have to mean anything at all?”

I don’t think the court is obligated to count this as serious “commentary” when it’s of this nature. This factor is against fair use to me.

“the nature of the copyrighted work;”

The nature of the copyrighted work is a photograph, and is creative rather than merely functional. Clearly against fair use.

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

It’s the entire picture with some minor cropping, according to the lawsuit. Clearly against fair use.

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

I’m not sure on this one, since I wouldn’t buy either one.

Eldakka (profile) says:

Re: Re: Re:

I don’t think the court is obligated to count this as serious “commentary” when it’s of this nature. This factor is against fair use to me.

Define ‘serious commentary’. How is it different from just ‘commentary’? Who decides what is serious or not serious commentary? Who has to be ‘serious’ about the commentary? This sounds like a state of mind. Is it the state of mind of the author of the commentary or of the audience of the commentary? WHICH audience? There can be many audiences, each with different opinions. Which one will be chosen as the test for their state of mind in creating or viewing the commentary as being serious?

Why does it have to be serious? Do the 4 factors test use the word ‘serious’ with respect to commentary?

‘serious commentary’ vs ‘commentary’ is just as nebulous a concept as art or pornography. Whether something is serious, art or pornography differs depending on who you ask about the work.

Anonymous Coward says:

Re: Re:

His next project is a multimedia installation: he’s gonna make a video of a blown-up monkey selfie (edited to show the monkey eating a Kit Kat Bar) in a frame with rounded corners set against a white background with the audio being “When Doves Cry” played via a satellite radio receiver. Also, there will be a shark. Somehow.

Joe says:

I’m having a bit of trouble seeing the fair use test in this case.

Under the Transformative test, we’re supposed to look at:

1. Has the material you have taken from the original work been transformed by adding new expression or meaning?

2. Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

The answer for the first seems to be – barely? If I took an image with a RGB background of white (255,255,255) and changed that to (254,254,254) – would that count as transformative? I could justify it with art-speak saying it represented a lack of purity in the world. There’s a De Minimis defense for fair use, should that be part of the transformative test as well?

Gracey (profile) says:

[ even if you don’t appreciate Prince’s “art,” it’s fairly obvious that some people do, because people do keep buying up his works,]

ummmm what work? None of it appears to be “his”. Adding a bit of text to someone else’s “work” doesn’t make it yours. That’s not work. It doesn’t make it “art” either.

That’s about the same as photocopying a page from a book, printing your name in crayon on it, and then calling it your work.

Those who can, create. Those who can’t, copy.

Anonymous Coward says:

Transformative

While what Richard Price is not changing the images themselves (other then possible cropping them), he is displaying the same art in a different context, and the context changes how people view the art. This can be seen as either transformative, if only just barely, or as stealing art and just transforming the frame.

Noble (user link) says:

Irritating

The tone of this article is irritating! “Graham could have easily used the situation to get extra attention for his own work. Instead, he’s choosing to rip apart someone else’s work.” That’s nonsense.

Every artist deserves the right to protect their work and selfish, unoriginal, assholes like this shouldn’t have their criminal acts validated in embarrassingly bungled court cases, because incompetent legal “professionals” choose to see the factors of fair use as independent, neglecting the intent and purpose of fair use.

If I don’t want to sell my photos, that doesn’t give anyone else the right to sell them. That’s nonsense. The author of this article obviously has no respect for artists or the copyright laws in place to protect them. I wold say no one who remotely condones Dick Prince’s actions does.

Noble (user link) says:

Transformative/Derivative

Also, since we’re talking about derivative work and transformative work, let’s remember that Fair Use makes up a single paragraph in 366 pages of copyright and related laws. Transformative and derivative aren’t mentioned.

The only variation of transformative, “transformed” is only mentioned one. single. time. in all of copyright law. It’s mentioned in the definition of derivative work. Copyright law clearly states that derivative work is an exclusive right of the copyright holder. Meaning, someone like Andy Warhol was absolutely, undeniably in violation of copyright law.

This whole concept of “transformative work”, this is 100% true, comes from one single individual, a judge by the name of Pierre Leval who wrote about fair use in an academic paper. This single man’s poor understanding and interpretation of fair use led him to believe that it needed to be more clearly defined. In his mind this meant sharing his own perspective in the hopes others would use it as the method for defining the intent of the first factor of fair use.

This lead to an infuriating case in 1994, where an incompetent Justice (David Souter), decided in error that not only should the first factor of fair use be taken to mean considering the “transformative” nature of a piece (following Leval’s confounding logic), but also INCOMPREHESNIBLY decided that the greater the degree to which something is trasnformative, the less significant the other factors should be in weighing the validity of fair use. Which is mind boggling LUNACY! Regardless of whether or not fair use is confusing to legal professionals, you can’t say you don’t want to weight the other factors less strictly because you don’t understand one of them!!! That doesn’t make any sense!

Incompetence like that is how someone like Dick Prince could ever get away with blatantly infringing on the rights of other artists, which he is doing, unequivocally.

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