Richard Prince has built quite a name for himself, based largely on appropriation. First there was the series known as Cowboys, in which Prince rephotographed Sam Abell’s Marlboro Men, cutting out the Marlboro logo and any text and adding pretty hefty price tags (considering). There was also Covering Pollock, a series in which Prince took photos of Jackson Pollock taken by Hans Namuth and added images of people like Kate Moss and Sid Vicious on top. And then there was the time that Prince took photographs taken by Patrick Cariou and added what some would call very minor changes. This time around, Prince is appropriating not from famous artists or photographers, but instead from Instagrammers. The series, called New Portraits, uses blown-up photos from several accounts, including 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.
If you’re like me, you’re wondering how an artist can take someone else’s photos, add something very minimal, and somehow end up with an installation at the Gagosian Gallery. Not to mention that these photos are selling for as much as $100,000. Beyond my automatic reaction that this doesn’t seem all that creative, I have to wonder whether or not there are some legal issues at hand.
So let’s start with copyright law, which protects original works of authorship, such as a person’s photographs. Obtaining a copyright in a work simply requires that the work be fixed in a tangible means of expression and that it be original (a pretty easy requirement to meet). There is no requirement that a person file for copyright protection in order to have it. This means that an Instagram user who posts a photo would theoretically have a copyright in that photo (barring an Instagram policy stating otherwise, which will be discussed below). And once a person has copyright protection in their work, they are given the right to publish, reproduce, distribute, perform, or display that work.
So, assuming for a minute that agreeing to Instagram’s terms does not strip you of your intellectual property rights, you’d have copyright protection in most photos you post on Instagram. Assuming, that is, that the photos you’re posting display a modicum of originality. And so if someone took a photo of yours that qualified for copyright protection and say blew it up and displayed it in a gallery, à la Richard Prince, you’d have grounds for an infringement claim.
But, a popular and successful defense to copyright infringement is fair use. This allows someone to use a copyrighted work when that use contributes to public discourse or when a new work is created. While it’s hard to predict how courts will rule on this issue, there are four factors consistently considered when deciding whether or not there is fair use: (1) the purpose and character of the use; (2) the nature of the work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the copyrighted work.
In practice, one consideration rules above all others when determining if there is fair use, and that is how transformative the new work is. This concept came from a 1994 Supreme Court case, which found that to be transformative, a use must add to the original “with a further purpose or different character, altering the first with new expression, meaning, or message.”
And this transformative use argument has actually worked in Prince’s favor before. You might remember that a little over two years ago, we told you that Prince found himself on the receiving end of a copyright infringement lawsuit as a result of Prince’s Canal Zone series of paintings, which incorporated photographs by Patrick Cariou. Prince argued that his work was transformative and was fair use, but U.S. District judge Deborah Batts ruled against him and ordered the destruction of all remaining copies of the catalogue and unsold paintings that make use of Cariou’s photographs.
Cariou’s photo (left) & Prince’s version (right)
But the Court of Appeals for the Second Circuit disagreed, ruling that Prince had sufficiently transformed the majority of the images at issue. The court held that Prince’s work could be considered a fair use of Cariou’s work because Prince’s photos “have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.” The court went on to say that “Prince has not presented the same material as Cariou in a different manner, but instead has ‘add[ed] something new’ and presented images with a fundamentally different aesthetic.”
So, are Prince’s Instagram photos fair use? It’s hard to say. I don’t think he’s sufficiently “added something new” to the photos. Sure, he’s added some comments, but that doesn’t seem like enough to equal creating a “new expression, meaning, or message.” To me, it’s unlikely that he’d be successful claiming fair use if some Instagrammer decides to sue him.
This essentially means that Instagram doesn’t own your photos, but it does have the right to sub-license them. In effect, by posting something on Instagram, you might be creating an implied license of sorts, because the argument could be made that by posting a picture to the masses via Instagram and by agreeing that Instagram can sub-license your photos, you give implicit consent for other uses.
Another area of law I wondered about, especially for the known faces used by Prince, like Kate Moss, is the right of publicity. Right of publicity laws general allow a person to protect the use of their name, likeness, and other personal attributes without permission. Right of publicity laws vary from state to state, so to make things simpler and since the Gagosian Gallery is in NY, I’ll focus on the laws here. NY’s right of publicity law is codified as part of a statute with two sections – Section 50 and Section 51 – being primarily relied on in right of publicity suits.
A typical right of publicity suit will reference both sections. Section 50 is much shorter than Section 51, basically just defining a right of publicity violation as a misdemeanor. Section 51, on the other hand, provides protection for a person’s name, portrait, picture, and voice. To constitute a violation of Section 51, a use of a person’s identity must be: within New York state; for advertising or trade purposes; and without written consent. As evidenced by reactions from some of the subjects in Prince’s series (see here), there was no permission, and there’s really no denying that the alleged use of these likenesses is for trade purposes. So, at first blush, this looks like a promising avenue to take against Prince.
But a victory might not be that simple. A person or entity being sued related to a right of publicity often claims First Amendment protection in the use in question. And courts apply what’s called the transformative test to determine whether or not First Amendment rights trump a right of publicity. Several courts have found that a defendant can raise the affirmative defense that the First Amendment protects a work when said work contains “significant transformative elements.”
In one NY case, artist Barbara Kruger took an already existing photograph of Charlotte Dabney holding a large magnifying glass over her right eye, cropped and enlarged it, and added the text, “It’s a small world but not if you have to clean it” on three large red blocks. The original photo with just Dabney and the magnifying glass was taken by German photographer Thomas Hoepker. Dabney and Hoepker filed suit, claiming a violation of Dabney’s right of publicity, among other things. The U.S. District Court for the Southern District of New York held that Dabney could not recover because Kruger’s artistic work was protected by the First Amendment and was sufficiently transformative.
So, if it’s enough for Kruger to add text and adjust the size of the original photo, it just might be enough that Prince did pretty much the same.
Richard Prince likes to borrow from others and add minor changes. Sometimes, as was the case in the Cariou lawsuit, he skates pretty close to copyright infringement, but manages to walk away unscathed. Will that be the case if he’s sued here? I’m not so sure. What do you think, should he be able to take Instagram photos, make minor adjustments, and sell them?
JENNIFER WILLIAMS is a law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently admitted to the NY State Bar. For more from Jennifer, follow her on Twitter.