In yet another unsurprising turn of events in connection with Richard Prince’s Instagram exhibit, the artist has responded to a recently-filed copyright infringement lawsuit, claiming he should be shielded from infringement charges because his use of others’ copyright-protected images amounts to fair use. A quick reminder: Prince, an artist who has built quite a name for himself, based largely on appropriation and copyright infringement allegations, released a new series, entitled, New Portraits, which consists of blown-up photos from several Instagram accounts, including those of Pamela Anderson, Kate Moss, and Cara Stricker. Prince’s only real contributions are comments under the photos. For example, under one photo, Prince adds, “No Cure, No Pay” with an emoji.
So, unsurprisingly one of the individuals whose Instagram photos Prince co-opted for the exhibit, a Los Angeles-based photographer named Donald Graham, filed a lawsuit against Prince, the Gagosian Gallery and Larry Gagosian. Graham filed suit (by way of high powered New York law firm, Cravath, Swaine & Moore) in the Southern District of New York court in January, alleging that the defendants infringed the federally registered copyright in his photo, Rastafarian Smoking a Joint.
Well, as of this past week, Prince filed his response to the plaintiff’s lawsuit (in a legal document referred to as an answer), asking to court to dismiss the case, “blasting [it] as an attempt to ‘essentially re-litigate’ his controversial fair use victory against another photographer,” per Law360. Prince is referring to his 2013 victory in a separate copyright infringement matter, which photographer Patrick Cariou filed against Prince and a number of the same defendants, including the Gagosian Gallery and dealer Larry Gagosian. In that case, Cariou argued that Prince’s use and alteration of several of his photographs for a collection by Prince, entitled "Canal Zone,” amounted to copyright infringement. In what was a highly-watched case, the U.S. Court of Appeals for the Second Circuit Judge Barrington Parker held that the majority of Prince’s works did not violate photographer Patrick Cariou's copyrights, as they were different enough from the originals, even though they were clearly based on prior works of Cariou.
In particular, the Second Circuit panel held that Prince had sufficiently transformed the majority of the images at issue, which were taken by Cariou and published book in a 2000. The court held that Prince's work could be considered a "fair use" of Cariou's work (and thus, not copyright infringement). The judge largely overturned the lower court's ruling, which stated that Prince's art needed to comment on Cariou's work to be considered "fair use." (FYI - fair use is a defense to copyright infringement based on the notion that a work derived from a previously copyrighted work may be transformed to the point that the copyrights stemming from the original work are not violated by the subsequent work).
As for the case at hand, Prince's attorney, Joshua Schiller, of Manhattan firm Boies, Schiller & Flexner, argues in the answer that the court should rely on that case, and find that Prince’s current work is similarly transformative, and as a result, such work should be protected under the "fair use" provisions of copyright law. Schiller further argues that because the central meaning of Prince’s work is firmly based on the use of social media, it is not merely an appropriation of Graham's photograph. He also suggests that the work should be protected because it does not affect the market for Graham's output, which is one factor in legal test for determining fair use.
Citing former works by Prince, Schiller further claims: “The fact that Mr. Prince is now appropriating from popular social media platforms like Instagram, as he has in the past done with traditional media like the New York Times and Time Magazine, make the current work challenged by the photographer Donald Graham just as deserving of fair use protections," he writes.