Artist Richard Prince has been hit with yet another copyright infringement lawsuit in connection with his “New Portraits” Instagram exhibition. This time, Prince is being hauled into court by acclaimed commercial, editorial and fine art photographer, Eric McNatt, who claims that Prince made an infringing derivative copy of his portrait of Sonic Youth front woman, Kim Gordon, and is therefore, on the hook for copyright infringement.
According to McNatt’s complaint, which was filed in the U.S. District Court for the Southern District of New York on Wednesday, “Prince, an ‘appropriation artist’ notorious for incorporating the works of others into artworks for which he claims sole authorship, willfully and knowingly and without seeking or receiving permission from Mr. McNatt, copied and reproduced [McNatt’s copyrighted photograph] as it appeared on an Internet website.” McNatt also alleges that Prince “has made tens of millions of dollars over the course of his career by reproducing, modifying or preparing derivative works from the works of others, typically without permission, and selling the reproduced, modified or derivative works as his own.”
McNatt’s complaint continues on to state: “Mr. Prince uploaded a digital copy of the Copyrighted Photograph [one that McNatt claims took him a total of 21 hours in pre- and post-production to create] to the social media website Instagram using his own Instagram account, accompanied by three captions. Mr. Prince printed a physical copy of [that social media post] retaining the existing Instagram elements surrounding the Copyrighted Photograph, and displayed the Infringing Portrait at a gallery owned and operated by Blum & Poe in or around April and May of 2015 as part of an exhibition.” The complaint asserts that McNatt’s photograph also appears in a book related to the “New Portraits” exhibition, which was created “without seeking or receiving permission from, giving attribution to, or compensating Mr. McNatt.”
Far from an unknown artist himself, McNatt’s photography “has appeared in over 100 different magazines worldwide including Entertainment Weekly, ESPN-The Magazine, Esquire, Fortune, Glamour, GQ, New York Magazine, The New York Times Magazine, Paper, People, Spin, Time, Vogue and Wired, and in advertising campaigns for corporate clients in the music, television and other industries,” according to the complaint. McNatt claims that he is active in the market for the licensing of commercial photography,” and that “were behavior of the sort engaged in by Mr. Prince to become unrestricted and widespread, Mr. McNatt would have no greater control (and thus no market advantage) over the distribution of his copyrighted works than anyone with an Instagram account and access to an inkjet printer.”
As a result, McNatt is asking the court to grant him a “permanent injunctive relief enjoining each Defendant from reproducing, modifying, preparing derivative works from, displaying or selling, offering to sell, or otherwise distributing the Copyrighted Photograph, the Infringing Post, the Infringing Portrait, the Infringing Book or any other infringing articles.” He is also seeking “statutory damages in the maximum amount allowed by law, or, alternatively at Mr. McNatt’s election, actual damages suffered by Mr. McNatt and profits or other advantages derived by Defendants arising out of or related to copyright infringement of the Copyrighted Photograph.”
Given the nature of the “New Portraits” exhibit, this is – not surprisingly – the second in a line of related litigation. In December 2015, Prince was sued by Los Angeles-based photographer Donald Graham, who alleged that Price infringed the copyright in his photo, "Rastafarian Smoking a Joint," a "somber black and white portrait capturing a Rastafarian man in the act of lighting a marijuana cigarette,” for the show. That case - which Prince has vowed to fight - is still pending in the U.S. District Court for the Southern District of New York.
Prince does, after all, have fair use within his arsenal of defenses to these copyright infringement claims. Under copyright law, “fair use” is the copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. As we consider Prince’s defense, the questions then become: (1) Were the Instagram photos that Prince took screenshots of copyrighted material; (2) Since the photos were posted on and taken from social media does that make a difference; and (3) Are commentary on photos obtained from social media sufficient to transform the source material to qualify as fair use?