On the heels of Beyonce’s legal team claiming fair use in the $20 million copyright infringement lawsuit filed against the singer over her hit song “Formation,” artist Richard Prince is relying on the same defense in the latest copyright suit filed against him. Prince – a well-known “appropriation artist – was slapped with a couple of copyright infringement suits last year in connection with his “New Portraits” show, which consisted of photos of others’ Instagram postings with some minor additions from Prince. In the first of the suits, which Los Angeles-based photographer Donald Graham filed against Prince in a New York federal court in January 2016, Graham alleges that Prince 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” by including it in his “New Portraits” show.

Graham further alleged 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.

In asking the U.S. District Court for the Southern District of New York to toss out the case, Prince’s legal counsel argued in April 2017 that the artist’s use of Graham’s photo amounts to fair use, thereby shielding him from copyright infringement claims. Prince’s lawyers rely on a 2013 ruling from the Court of Appeals for the Second Circuit, which held that Prince was protected by fair use, 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.

The Second Circuit found that Prince largely did not violate photographer Patrick Cariou’s copyrights in using his photos, as Prince’s works were different enough from the originals, even though they were clearly based on prior works of Cariou. Prince altered and incorporated several of Cariou’s photographs for a collection of his own, entitled “Canal Zone.”

 Cairo's photo (left) and Prince's work (right)
Cairo’s photo (left) and Prince’s work (right)

In that case, the Second Circuit overturned the lower court’s ruling, which found that Prince’s art was lacking the necessary commentary on Cariou’s work to be considered fair use.

Prince’s motion to dismiss comes after his legal team filed a response to the plaintiff’s lawsuit (in a legal document referred to as an answer), “blasting [Graham’s suit] as an attempt to ‘essentially re-litigate’ his controversial fair use victory against [Cariou].” Prince’s attorney, Joshua Schiller, of Manhattan firm Boies, Schiller & Flexner, argued 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.

In the other copyright infringement suit against Prince stemming from the “New Portraits” show, commercial, editorial and fine art photographer, Eric McNatt, 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.

UPDATED (7/18/2017): A New York federal judge has refused to dismiss Graham’s copyright lawsuit Prince based on Prince’s assertion of the fair use defense. According to the court, it is too early to decide if Prince’s works are protected by the fair use doctrine.