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:
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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: appropriation art, art, copyright, culture, donald graham, fair use, rastafarians, richard prince
Reader Comments
Subscribe: RSS
View by: Time | Thread
This article makes me think that Mike doesn't think it okay to take another's work.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Fixed it for you.
He just wants to sell his stuff for a lot of money.
Fixed it for you.
[ link to this | view in thread ]
[ link to this | view in thread ]
Isn't one enough?
[ link to this | view in thread ]
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?
[ link to this | view in thread ]
Likely because of the crazy prices, as some people equate price to quality.
[ link to this | view in thread ]
Re:
Which is why this takedown of Masnick and his silly theories is so perfect:
http://illusionofmore.com/dont-call-copyright-a-government-granted-monopoly/
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
Re:
"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...
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.
[ link to this | view in thread ]
Transformative
[ link to this | view in thread ]
Re:
You're making a lot of assumptions about the relative value of someone's signed name and a non-specific page from a book.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
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 .
[ link to this | view in thread ]
Re:
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?).
[ link to this | view in thread ]
Re: Re:
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.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
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.
[ link to this | view in thread ]
Re: Re:
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.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
Citation needed.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
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.
[ link to this | view in thread ]
[ link to this | view in thread ]
Irritating
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.
[ link to this | view in thread ]
Transformative/Derivative
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.
[ link to this | view in thread ]
Re: Transformative/Derivative
[ link to this | view in thread ]
Re: Irritating
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]