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August 23, 2016 Practice Points

Richard Prince, Back in the Spotlight

This time he's up against his most famous adversary yet, Dennis Morris.

By Robby Anderson

At this point it is no longer surprising that Richard Prince has been sued yet again for copyright infringement. This time, Prince is up against his most famous adversary yet, Dennis Morris. Morris is a rock and roll photographer known for his images of Sid Vicious and Bob Marley. Morris claims that Prince is infringing on his copyright through appropriation art—art works that are composed mainly of pre-existing photographs and other images. Unfortunately for Morris, this is not Prince’s first rodeo, and by now, he has practically become an expert in the “fair use” defense, as well as one of its highest-profile proponents. 

Prince’s broad reading of fair use as a basis for evading infringement claims against his appropriation art was implicitly blessed in the Second Circuit’s 2013 decision in Cariou v. Prince, 714 F.3d 694,which held that Prince’s works that appropriated photographs from Patrick Cariou’s book Yes Rasta and added graffiti blobs and other elements to the photographs was transformative and constituted fair use.  

After his victory in the Second Circuit, Prince must have felt invincible, because in September of 2014 he debuted what is likely his most controversial exhibit yet, “New Portraits.” At this exhibit, which was displayed at the high-end Gagosian Gallery, Prince revealed his new “experiment” for the copyright infringement battle—screenshots of Instagram photos. However, in typical Prince fashion, he found a way to transform these photos posted publically by Instagram users. First, he did not copy the photo itself, but the entire Instagram interface. Prince also posted a comment on each image before taking the screenshot. Finally, he had blown the image up to gallery size, rather than the most often used size—a cell phone screen’s length. 

One group whose Instagram posts were appropriated by Prince, the pin-up group the Suicide Girls, responded by simply printing their own version and selling them for a fraction of the price Prince was charging

But another “New Portrait” work involving an Instagram user’s unauthorized use of fine-art photographer Donald Graham’s photograph “Rastafarian Smoking a Joint” became the subject of litigation when Graham sued Prince for copyright infringement in December 2015. Graham v. Prince, Civ. No. 1:15-cv-10160-SHS (S.D.N.Y. filed Dec. 30. 2015).Prince moved to dismiss the case, relying heavily on the Second Circuit’s holding in Cariou v. Prince that as long as the work is “transformative,” the use is fair. Prince argued that the work is transformative because it incorporates the Instagram interface, Prince’s comment and other users’ comments and “likes” that “have become iconic elements of the modern internet,” and thus conveys an entirely different context and purpose than the original. The motion to dismiss remains pending, but the result will provide guidance to copyright holders on how to protect their rights when a work is uploaded to a publically available platform without authorization and subsequently appropriated by another party.  

In his suit against Prince, filed several months after the Graham lawsuit, Morris claimed that Prince “wrongfully created copies of the copyrighted…Image without” Morris’s consent by re-photographing Morris’s photo of Sid Vicious out of a book and posting it to his Instagram account, as well as making unauthorized use of several photos of Vicious in his 2011 exhibit, “Covering Pollock.” Dennis Morris LLC, v. Prince, Civ. No. 2:16-cv-03924 (C.D. Cal. filed June 3, 2016). The outcome of the motion to dismiss in the Graham case may provide guidance in resolving the Morris suit as well. 

Although Prince seems to be a rogue artist trying to make a quick buck, his experience in copyright infringement cases indicates that he must know what he is doing. Aside from keeping his lawyer in business, Prince likely could be a certified expert in infringement cases at this point. Prince seems to consistently push the boundaries of fair use, and it will be interesting to see if and when he goes one step to far and is slapped with an adverse ruling and a hefty fine. One thing is certain, any lawyer interested in copyright law should continue to keep an eye on Prince for the current state of fair use. 

Keywords: intellectual property, litigation, art, Dennis Morris, Richard Prince, Sid Vicious, Bob Marley, copyright infringement, fair use 

Robby Anderson is a J.D. candidate at the University of Alabama School of Law in Tuscaloosa, Alabama.

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Robby Anderson – August 23, 2016