Richard Prince is a well-known artist — or, more accurately, an “appropriation artist” who takes existing art and adds to it to create his own piece. He has explained that he uses existing artwork — which is under copyright — and comments on it through “recontextualization.” Famously, he won the case Cariou v. Prince, in which the Second Circuit found that Prince’s artwork could be considered transformative fair use. Not surprisingly, he’s now embroiled in another copyright infringement suit again involving appropriation art.
Andy Warhol is perhaps the most famous appropriation artist, creating a series of Marilyn Monroe paintings in the pop-art style based off a photograph. He painted Campbell’s soup labels. But what are the bounds of appropriation art as fair use? Warhol was once quoted as saying that “[a]rt is what you can get away with,” which seems like an apt statement for an appropriation artist: what can one legally get away with when using someone else’s art? Prince appears to be testing those limits, seeing how far he can push the boundaries of fair use. Enter current litigation around an exhibit Prince created, relying on Instagram posts by other users.
Readers of this column already know I’m a big fan of fair use. I’ve written time and time again about this critical user’s right. And yet, I have to admit that I’m not sure that Prince’s uses in the current context are fair uses. Because he has chosen to litigate the case, though, we’ll soon find out. Perhaps he feels emboldened by the outcome in Cariou v. Prince, or perhaps he really wants to test the boundaries of fair use.
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Cariou v. Prince, a case decided in 2013, involved photographs of the Rastafarian community in Jamaica taken by Patrick Cariou and published in the book, Yes Rasta. Prince then created his own series based on photographs from the book. Prince added pops of color or other images to the original, blurred some photos, created composites, and otherwise added content or changed the photograph. Although the district court ruled against Prince’s argument that he was engaging in fair use, the Second Circuit found the works to be transformative because Prince was commenting on the original work through his appropriation. Whether one believes that Prince’s actions in Cariou constituted fair use, it’s indisputable that Prince did add and change the photograph, sometimes significantly.
In current litigation against Prince, it’s less clear that significant changes or additions have been made. Here, Prince created an exhibit based on the photographs on Instagram, known as the New Portrait exhibition. Prince blew up photos that appeared on Instagram, included some of the comments, then added his own comment. In essence, Prince’s entire exhibit involved Instagram screenshots that included a text comment written by him. Prince sold some of these pieces of artwork for up to $100,000. (Let’s place this price in context. While some Instagram users may be outraged that Prince is basically selling their photographs for tens of thousands of dollars, remember that purchasers are buying them because of Prince’s name attached, not because they want the original Instagram photo. As Prince’s filing states, “Indeed, it would make no sense for someone to pay for a Richard Prince if they wanted the Graham Photograph, which they could easily purchase for a fraction of the price of a New Portrait.”) In the lawsuit, Prince asserts that keeping the Instagram photos untouched is actually essential to the purpose of his exhibit, which he claims is an ode to social media.
In determining whether Prince’s appropriation in the New Portrait exhibit case is a fair use will require a court to evaluate the four fair use factors: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount of the work used in relation to the whole; and 4) effect on the market for the work. Earlier this month, Prince filed two memorandums in support of motions to dismiss current litigation around the New Portrait exhibit, claiming fair use. These memorandums make some good arguments, explaining why fair use favors his uses and why he did not make significant alterations to the Instagram photos. Whether the district court agrees with these arguments is another story.
Of course, it should be noted that a copyright infringement suit isn’t the only way to address Prince’s actions. One of the Instagram accounts, Suicide Girls, prominently featured in Prince’s New Portrait exhibition. In response, Suicide Girls re-appropriated Prince’s appropriation — taking what Prince had done, then adding their own comment below Prince’s — and then sold them at a fraction of the cost of Prince’s works. Prince, to his credit, promoted this action, calling it “smart.” Suicide Girls found a way to exploit Prince’s appropriation and take advantage of the heightened publicity.
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It’s worth noting that for many artists, appropriation of their artwork can actually increase the value of their original and not just through re-appropriation like the Suicide Girls’ actions. Prince, as a well-known artist, can expose a photographer or artist to a new audience. In Prince’s filing in support of his motion to dismiss in current litigation around his Instagram exhibit, for example, notes that his appropriation has “in no way usurped Graham’s market — to the contrary, Graham sold his Photograph for the greatest amount after Prince’s use” (which goes to the very heart of the fourth fair use factor — the effect of the use on the potential market). Campbell’s Soup understood Warhol’s appropriation of its soup can labels to be free advertising, eventually embracing the work and sending Warhol cases of tomato soup. Thus, from a marketing perspective, artists may actually see the value of their works increase.
To be honest, I’m not even sure Prince truly cares about winning this lawsuit. He may simply be pushing the boundaries to see what he can get away with. He seems to be baiting photographers into suing him and he may keep going until a court finally tells him he’s hit the limit. Even outside his appropriation art, he sometimes makes the news for what could be termed a publicity stunt — like when he returned payment of $36,000 over a work he was involved in that depicted Ivanka Trump, purportedly in protest of President Trump. Copyright infringement suits make the news, raising Prince’s profile as an appropriation artist and drawing more attention to his work, so this may be another (high priced) attempt to gain more publicity.
Given Prince’s persona and what appears to be a desire for publicity, one might also wonder whether his entire appropriate art, get sued, fight the case in court (rather than settle), then do it all again act is actually a giant performance art piece. Perhaps Prince doesn’t actually care about fair use, but instead relishes in the publicity and court fights. If so, regardless of the outcome of the fair use lawsuit, Prince is getting exactly what he wants.
Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].