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:
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.