In a rather unsurprising turn of events (considering that we predicted this), artist Richard Prince has been sued in connection with the his “New Portraits” show, which consisted of photos of others’ Instagram postings and which was held at Larry Gagosian’s New York gallery in September and October 2014. The plaintiff, a Los Angeles-based photographer named Donald Graham, filed suit against Prince, the Gagosian Gallery and Larry Gagosian in the Southern District of New York court. Graham, “a visual artist engaged in fine art and commercial photography whose artwork has been exhibited in museums and shown at fine art galleries,” alleges that the defendants 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.”
According to Graham’s complaint, Prince is “an ‘appropriation artist’ notorious for incorporating works of others into artworks for which he claims sole authorship, willingly and knowingly and without seeking permission from Mr. Graham, copied and reproduced the Copyrighted Photograph as it appeared on a social media website […] and displayed the Infringing Work at a fine art gallery space owned.” Graham alleges that the differences between his original photograph and Prince’s subsequent print are minimal: Prince “minorly cropped” the top and bottom slightly and framed the photograph with the design elements of Instagram, including four lines of text comments. The dimensions are almost the same: Graham has a limited edition print available at 4 feet by 5 feet; Prince’s work is 4 feet ¾ inches by 5 feet 5 ¾ inches.
Moreover, Graham alleges that this isn’t Prince’s or Gagosian’s first copyright infringement suit. In fact, “Defendants were previously co-defendants in a suit by a photographer alleging direct and indirect copyright infringement primarily related to an exhibition of Mr. Prince’s works entitled ‘Canal Zone’ held at a gallery operated by Gagosian Gallery.” That lawsuit was ultimately settled out of court but not before a New York district court found infringement as a matter of law for all thirty Prince Canal Zone works. The Court of Appeals for the Second Circuit reversed as to twenty-five of the Prince Canal Works (finding such works to be permissible fair use). [More about that case here.]
Back to Graham’s case: The photo at issue was captured in May of 1996, by Graham who “spent approximately two weeks trekking through the villages and mountains of Jamaica, carrying with him his photography equipment and mobile studio, in order to capture photographs of the Rastafarian people in their surrounding environment.” Graham received federal copyright registration in the photo, which he claims is “is highly original and unique,” in 2014. And far from an unknown artist, Graham cites in his complaint that his photographs have been exhibited at the Metropolitan Museum of Art in New York and other museums; his work has appeared in Vogue and other publications; and the photograph in question appeared in Communication Arts magazine as part of an award-winning series.
While a number of fashion industry figures, such as model Jessica Hart and musician Sky Ferreira, have celebrated their inclusion in the gallery show, Graham is certainly not one of them. When confronted on Twitter why Graham’s wife, Prince had some choice words. According to the complaint, “On October 25, 2014, Mr. Prince responded to a post by Mr. Graham’s wife on the social media website 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.’”
In addition to a jury trial, Graham is asking the court to permanently prohibit “each Defendant from reproducing, modifying, preparing derivative works from, displaying or selling, offering to sell, or otherwise distributing the Infringing Work, the Infringing Catalog or any other infringing articles.” Graham wants the court to “order the seizure and forfeiture to Mr. Graham, or other disposition as the court deems appropriate, of the Infringing Work.” And of course, Graham wants monetary damages “in the maximum amount allowed by law, or, alternatively at Mr. Graham’s election, profits or other advantages derived by Defendants based on copyright infringement of the Copyrighted Photograph.”