Richard Prince: King of Appropriation
Richard Prince has been sued for copyright infringement by photographer Donald Graham who claims Prince knowingly reproduced a photograph of a Rastafarian, taken by Graham, without seeking his permission.[1]
Graham filed the complaint in New York federal court on December 30th against Prince, Gagosian Gallery – where Prince’s “New Portraits” exhibition ran between September and October 2014 – and Larry Gagosian, the gallery owner.[2] Prince’s “New Portraits” exhibition featured 37 inkjet canvas prints of a series of photos Prince pulled from Instagram.[3]
If this sounds all too familiar, that’s because this is not the first time Prince has made headlines for appropriating others’ artwork into his own. Prince’s earlier collection, “Canal Zone,” included photographs of Rastafarians by Patrick Cariou from Cariou’s book “Yes, Rasta.”[4] Cariou brought a similar suit against Prince back in 2011 over the “Canal Zone” series.[5] Though a trial judge found that Prince infringed Cariou’s copyrights, Prince won a 2013 reversal from the Second Circuit on the grounds that 25 of the 30 works at issue constituted fair use.[6] The parties settled out of court with respect to the remaining 5 paintings, leaving unanswered the questions of intellectual property at issue.[7]
Graham’s complaint emphasizes that Prince has “achieved notoriety in the ‘appropriation art’ industry for his blatant disregard of copyright law. Mr. Prince consistently and repeatedly has incorporated others’ works into works for which he claims sole authorship with obtaining permission from, or providing compensation, recognition or attribution to, the original work’s author.”[8] The complaint goes on to quote Prince himself: “Copyright has never interested me. For most of my life I owned half a stereo so there was no point in suing me, but that’s changed now and it’s interesting…So sometimes it’s better not to be successful and well known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared.”[9]
Though on the surface Graham’s case seems similar to Cariou v. Prince, there are important distinctions with Graham’s suit that could make it much tougher for Prince to once again defend his art on the basis of fair use.[10]
In determining whether the use of a work is fair use, the factors to be considered include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[11]
One major distinction between the two cases is that Prince made far less alterations to Graham’s photograph in “New Portraits” than he did to Cariou’s works in the “Canal Zone”:
Prince’s “New Portraits” print used Graham’s original image — a Rastafarian man lighting a cigarette — with the frame of an Instagram screen and comments, including one from Prince, underneath the photograph. Other than minor cropping around the edges, the entire original photo is presented unaltered.[12]
On the other hand, Prince’s “Canal Zone” works included cropped and superimposed photos onto other images, altered tints and colors, and hand-painted images over Cariou’s photos. The Second Circuit claimed that Prince created “an entirely different aesthetic” than Cariou.[13]
Another major distinction between Graham and Cariou involve the fourth prong of the fair use doctrine, the effect on the marketplace. Whereas Cariou did not make fine art prints of his work and had not exhibited them as prints, the market for Graham’s work is not nearly as distinguishable from Prince.[14] Graham argues in the complaint that he has only sold his work as prints, and “has never licensed the copyrighted photograph or made it available for any commercial purpose other than for sale to fine art collectors.”[15]
The concept of appropriation art raises questions about the scope of copyright protection and the use of preexisting works by other artists. As a result, Graham’s lawsuit is set up to test the bounds of the fair use doctrine in the Second Circuit yet again.[16]
Footnotes
