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February 16, 2016 Practice Points

Richard Prince: Toeing the Line Yet Again

Could Graham v. Prince and Cariou v. Prince provide the next set of Second Circuit fair-use bookends? Stay tuned.

By Robby Anderson

In September 2014, "appropriation artist" Richard Prince debuted a typically controversial exhibit, "New Portraits." This exhibit consisted of enlarged screenshots of users' Instagram interfaces, including photographs and captions from the original Instagram post, as well as Prince's own Instagram account's comments on each picture. Prince sold these prints in the high-end Gagosian Gallery for nearly $90,000 each.

Most of the Instagram accounts from which Prince appropriated these "New Portraits" belonged to models. Rather than sue Prince for copyright infringement, some of these models merely undercut his market by selling their own enlarged Instagram shots for under $1,000. However, photographer Donald Graham declined to take this approach and filed a copyright infringement suit on December 30, 2015, regarding a photograph of a Rastafarian that had been posted to Instagram by a third party.

This new suit echoes an earlier case (including its subject matter) brought by photographer Patrick Cariou over Prince's use of Rastafarian images from Cariou's book "Yes Rasta". The District Court had ruled in Cariou's favor, finding that Prince's alterations to the images did not constitute fair use. However, the Second Circuit reversed as to 25 of the 30 images in Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013), finding that Prince's additions to the original pictures changed the overall meaning of the pictures enough to be "transformative."

This background provides the standard for evaluating Graham's recent suit against Prince. To create "New Portraits," Prince did not copy and reprint solely the pictures posted by the other Instagram users; rather, he took a screenshot of the entire Instagram interface, which included the picture, the original comment from the author of the post, and an individualized comment from Prince himself. He then enlarged the photos to gallery size, which slightly pixelated them.  The commentary from Prince himself would seem to add an element favorable to fair use that was absent in Cariou. In that case, Prince had testified that he did not appropriate Cariou's photographs in order to comment on them, but rather, he merely liked them and found them aesthetically pleasing.

One aspect of the Second Circuit's fair use analysis in Cariou took into account that the copyright holder had not exhibited his works as prints; the images were only available in an 8" x 11" book. Prince, on the other hand, was marketing these (slightly altered) images in a larger format at the Gagosian Gallery. The Second Circuit commented that Prince's use thus did not impede the market for the original work. Unlike Cariou, however, Graham does display his pictures in art galleries and offers them for sale, thus operating in the same market as Prince's "New Portraits" series. This factor could provide a basis for distinguishing Cariou from the instant case.

From a practical perspective, if the Graham lawsuit proceeds to a judicial determination of fair use and the outcome differs from the finding of fair use in Cariou, the decisions may well provide useful guidance for copyright attorneys struggling to discern the ever-shifting target of fair use—just as a pair of lawsuits involving the artist Jeff Koons previously did. In 1992, the Second Circuit held in Rogers v. Koons that a sculptural interpretation of Rogers's photograph of a couple holding puppies was not fair use, given evidence that Koons intentionally copied the image, the apparent lack of commentary about the original work, and the minimally transformative elements (a change of media, from photograph to sculpture, was not enough). In 2006, Koons prevailed in an infringement suit brought by photographer Andrea Blanch over use of her fashion photograph Silk Sandals in a portion of his painting Niagara, from the series Easyfun-Ethereal. Because the appropriated work only constituted a portion of the allegedly infringing work, and Koons offered an explanation that the use of Blanch's photograph was necessary for him to comment on the banality and ubiquity of fashion media, the court found in favor of Koons.

Could Graham v. Prince and Cariou v. Prince provide the next set of Second Circuit fair-use bookends? Stay tuned.

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

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Robby Anderson – February 16, 2016