June 30, 2015 Practice Points

Instagram, Copyright, and the Art of Richard Prince

This is not Prince's first run-in with copyright issues.

By Robby Anderson

In September 2014, controversial artist Richard Prince released his newest exhibition, "New Portraits," in an upscale Manhattan art gallery. By "new," Prince meant screenshots of photos taken by Instagram users that he has enlarged and printed. The most shocking revelation was that his re-prints sold at the exhibition for around $90,000 apiece. Because of this, copyright lawyers, artists, and "regular Joes" on Instagram are beginning to question what forms, if any, of copyright law Prince could be violating.

This is not Prince's first run-in with copyright issues. In 2011, he added graffiti blobs to photos from the book "Yes Rasta" and sold them as his independent works. The original photographer sued Prince for copyright infringement. At the appellate level, the Second Circuit held that Prince had not infringed the copyrights of the original photographer since Prince's work was transformative of the original documents. Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013). The court found that Prince's additions to the original picture—for instance, a cartoon guitar—changed the overall meaning of the picture enough to be considered transformative and qualify as a fair use of the original works.

Thus, the question arises as to whether his "New Portraits" are transformative. As from the previous case, all Prince must do is make a slight adjustment to the original in order to make it his own. In this instance, he did not copy and reprint pictures posted by other Instagram users, rather he took a screenshot of the entire Instagram interface, which included the picture and an individualized comment that Prince personally added to the post via the Instagram "comment" feature. Prince then enlarged the photos to life-size versions, slightly pixelating them. Although Prince seems to relish pushing the boundaries of fair use, these changes are likely to be considered transformative, particularly since the resulting "New Portrait" is different in both meaning and looks than the original posted by the Instagram user.

The "New Portraits" collection is not too far removed from the work of legendary artists Andy Warhol and Jasper Johns. Both artists famously used a mainstream object that was not of their creation (Campbell's soup and the American flag) and transformed it into famous works of art in their own right. This follows the notion that all forms of art must have some sort of originating point or material. In this age of social media, shared digital photos are apparently materials and can be used as elements an artist uses to create his work. Using a photo as the basis or part of a piece of art is no different than using any other material (think again Campbell's soup or the American flag).

Some art critics believe this collection by Prince is destined to hurt the artistic field by allowing a free-for-all to use other's material. More likely, Prince is simply illustrating the changing expectations of privacy and ownership that have evolved with social media platforms like Instagram. A recent district court case from Michigan illustrates this observation, where the court held that a reasonable person would not find it objectionable to obtain a photo someone else previously posted publicly on a social media page. Binion v. O'Neal, 2015 U.S. Dist. LEXIS 43456 (E.D. Mich. 2015). Since the plaintiff had already publicly posted the picture on his public Instagram account, the court explained, the picture was no longer private.

Despite the public hand-wringing over his exhibition (which is probably the reaction he was seeking) this transformation is probably enough in order to not violate any copyright infringement laws.

Keywords: intellectual property, litigation, copyright infringement, Instagram, Richard Prince, New Portraits, transformative, art

Robby Anderson is with the Class of 2017 at the University of Alabama School of Law in Tuscaloosa, Alabama.

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Robby Anderson – June 30, 2015