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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  • identicon
    Anonymous Coward, 6 Jan 2016 @ 11:02am

    but I thought TechDirt supported this model.

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

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 11:08am

      Re:

      He DOES support it, he just notes that the person doing it is being slimy. I disagree with him in this case.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 11:38am

      Re:

      Oh he does.

      Which is why this takedown of Masnick and his silly theories is so perfect:

      http://illusionofmore.com/dont-call-copyright-a-government-granted-monopoly/

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 5:04pm

      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?).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2016 @ 6:54am

        Re: Re:

        You probably should just post "I agree" or even better, don't post unless you have a point. If you do have a point, keep that point in mind as you type your post. This method will help the readers follow your point.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2016 @ 11:06am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 11:43am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 6 Jan 2016 @ 6:49pm

        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.

        reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 7 Jan 2016 @ 12:13am

      Re:

      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.

      But he *did*. And it's not the underlying work that makes it worth that much, it's the fact that it was created by Richard Prince. That's what's transformative. The original photo was worth x. The Prince version is worth many times x. You and I might not understand *why* but that's how the art world has valued them.

      So my argument is that it's transformative not in the sense of "oh the work is different" but it's transformative in that "people value it entirely differently." Something is different about the work, and that difference is, basically "Richard Prince did this."

      You're focusing too narrowly on whether the image *looks* different to determine if it's transformative. But that's not the way to look at it. It's a question of whether the overall way it's viewed is different. And that's why it's transformative.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2016 @ 4:53am

        Re: Re:

        so this argument puts me closer to seeing your side, but I am still going to disagree.

        I feel like, unlike some of the other abuses we see over the years, this is *exactly* what copyright is supposed to protect.

        if I took an image and made it into a book cover, I have transformed it, but that doesn't change the fact that I better have permission to use that image.

        if I took the entire text of Harry Potter, and renamed him Jerry Potter, I have transformed it, but again..


        and to the Warhol argument above, he made those images, he didn't take someone else's, so the comparison is not there.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2016 @ 7:04am

        Re: Re:

        You're focusing too narrowly on whether the image *looks* different to determine if it's transformative. But that's not the way to look at it. It's a question of whether the overall way it's viewed is different. And that's why it's transformative.

        Citation needed.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2016 @ 11:24pm

        Re: Re:

        It wasn't created by Richard Prince first of all. It was repurposed by Richard Prince. That is not transformative. The value assigned to the art has no bearing on whether the use is transformative because the intrinsic value of the art is nebulous and therefore cannot be defined.

        How people value the work doesn't make it transformative either. To do so opens the door to such a liberal interpretations as to make any protections utterly meaningless. Anyone can copy paste any art piece and therefore it has a different meaning, because the 'artist' is different and has a different thought pattern.

        I didn't only say it had to LOOK different. I also said that it makes no statement, nothing that DEFINES it as different from the original. A Mona Lisa made of unaltered dick pics is transformative because it's doing something with the original art that is NOT just the original art. Adding a made up comment is not "transformative" because there's no original thought or statement in the art piece aside from the value of his own name. To say otherwise is to say every art critique now owns the art they are critiquing, any person with an opinion on the art piece now owns the art piece and as such can sell it without any legal or moral compunctions. As anyone in the artist community can tell you, sticking your name and a comment on something definitely doesn't make it YOURS or okay to sell it.

        This is exactly the kind of thing the law SHOULD be cracking down on.

        reply to this | link to this | view in chronology ]

  • icon
    Nate (profile), 6 Jan 2016 @ 11:16am

    Fixed it for you.

    "He just wants to make his stuff."

    He just wants to sell his stuff for a lot of money.

    Fixed it for you.

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 6 Jan 2016 @ 11:20am

    I'm just glad that Richard Prince's "talent" is apparently limited to MS Paint. Get him an engraving machine, and soon we'd see "Richard Prince" name plates stuck to everyone else's paintings, sculptures and architecture.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 6 Jan 2016 @ 11:20am

    So wait, there's another guy called Prince involved in copyright insanity?

    Isn't one enough?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 7:18pm

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Joe, 6 Jan 2016 @ 11:31am

    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?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2016 @ 11:35am

    because people do keep buying up his works, even at those crazy prices.

    Likely because of the crazy prices, as some people equate price to quality.

    reply to this | link to this | view in chronology ]

  • icon
    Gracey (profile), 6 Jan 2016 @ 11:41am

    [ 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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 1:01pm

      Re:

      Who is wielding the crayon? What book is it? What is that person's intent on writing on that page?

      You're making a lot of assumptions about the relative value of someone's signed name and a non-specific page from a book.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2016 @ 7:32pm

      Re:

      It doesn't make it "art" either.
      Well, proving that someone should have the authority to turn that opinion into a legally binding objective fact is kinda the tricky bit.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2016 @ 11:49am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2016 @ 1:24pm

    The real problem I have with this isn't that he's taken someone else's work but what is determined to be transformative. Inserting a caption hardly seems transformative in and by itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2016 @ 4:25pm

    Holy crap
    How did Andy Warhol ever become famous ????
    He posted a Campbell soup can for gods sake .
    People get the F over yourselves if you
    can't find a way to make your own money and have to whine
    that you should get paid because someone else found a better way than you did .

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2016 @ 5:40am

      Re:

      Warhol painted those images, he did not take someone else's images and say they were his. there is no comparison here.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jan 2016 @ 8:53am

    I really do not like this guy at all. Any art community that I know of would throw this guy out and ban him from ever being a part of their community again. Solely for stealing other people's works to call his own

    reply to this | link to this | view in chronology ]

  • identicon
    Izi Ningishzidda, 9 Feb 2016 @ 8:31pm

    Fuck you this jerk is a scumbag if you can't see it then a pox on you

    reply to this | link to this | view in chronology ]

  • identicon
    Noble, 21 May 2016 @ 7:09pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Noble, 21 May 2016 @ 7:37pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Noble, 21 May 2016 @ 7:39pm

      Re: Transformative/Derivative

      Correction. Obviously, as stated, "derivative" is mentioned, it's just not mentioned in Fair Use.

      reply to this | link to this | view in chronology ]


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