Appropriation Artist Says Instagram Exhibit is Fair Use

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By David McAfee

Feb. 29 — An art exhibit featuring images from third-party Instagram posts constituted fair use, appropriation artist Richard Prince argued Feb. 26 in a court filing.

Prince, who previously prevailed on appeal in a similar case, sought to dismiss a copyright infringement claim filed by photographer Donald Graham in the U.S. District Court for the Southern District of New York . Graham argued that his copyrighted photo, “Rastafarian Smoking a Joint,” was unlawfully incorporated into Prince’s New Portraits exhibition displayed at the Gagosian Gallery in New York.

This case represents the most recent copyright infringement battle involving Prince, who says he follows in a long line of artists who have expressed themselves “by reference to the works of others.” If Prince is successful in his bid to dismiss the claim, the case would follow the U.S. Court of Appeals for the Second Circuit in establishing that these types of works are protected forms of new expression.

Prince cited the U.S. Court of Appeals for the Second Circuit's decision in Cariou v. Prince, 714 F.3d 694, 106 U.S.P.Q.2d 1497 (2d Cir. 2013), which handed him a victory and held that a piece of appropriation art need not comment on the original work to be protected by the Copyright Act's fair use doctrine .

That decision “is controlling and disposes of this case,” Prince argued in his motion to dismiss.

Prince's counsel Joshua I. Schiller of Boies, Schiller & Flexner LLP told Bloomberg BNA in a Feb. 29 e-mail that the exhibit contained “novel, expressive works that transform outside material used as raw ingredients.”

“Prince’s work doesn’t focus solely on the image in the Instagram post, but on the post itself including the comments which he posts (similar to each work in the New Portraits series),” Schiller said. “In this way, we argue that a reasonable observer could see this as ‘a commentary on the power of social media to broadly disseminate others’ work.’”

Representatives for Graham didn’t immediately return Bloomberg BNA’s requests for comment Feb. 29.

Similar to Earlier Litigation

Graham filed suit against Prince on Dec. 30, 2015, alleging that he infringed upon his exclusive rights in the “acclaimed photographic work of art” called Rastafarian Smoking a Joint. Graham described the image as “a somber black and white portrait capturing a Rastafarian man in the act of lighting a marijuana cigarette.”

Graham said Prince is “notorious for incorporating works of others into artworks for which he claims sole authorship” and that he willingly and knowingly reproduced the copyrighted photograph without permission. Prince modified the photo using Instagram’s elements and displayed it at the Gagosian gallery, Graham alleged.

Prince argued this case is similar to an earlier lawsuit brought against him by photographer Patrick Cariou over the use of his copyrighted Rastafarian photographs. In Cariou, a federal district court held that Prince didn't make fair use of Cariou’s work and ordered the destruction of the entire series.

Prince appealed to the Second Circuit, arguing that a reasonable observer would see the artist added new meanings, messages and aesthetics to Cariou’s photos. The Second Circuit agreed, holding that 25 of Prince's works were transformative, manifested “an entirely different aesthetic from Cariou's photographs,” and thus were protected as fair use.

“The parallels to this case are self-evident,” Schiller said. “Here, Prince is again accused of infringing a copyright despite incorporating Graham’s photograph into a work that imbues the photograph with additional meanings, messages, and aesthetics.”

The Role of Social Media

Schiller said the proliferation of content on social media poses the opportunity for more disputes like these to arise. The speed at which posts spread on social media, combined with the elimination of traditional barriers like editorial departments, contributes to the problem, he said.

“New expressive works are being created faster, they’re being shared faster, and therefore disputes are more likely to occur,” Schiller said.

“More and more social media presents us with question and answer scenarios that require a careful evaluation not only of how the existing laws apply but whether the laws should continue to apply or whether we should reevaluate our approach altogether,” he added.

Cravath, Swaine & Moore LLP represents Graham. Boies, Schiller & Flexner LLP represents Prince.

To contact the reporter on this story: David McAfee in Los Angeles at dmcafee@bna.com

To contact the editor responsible for this story: Alexis Kramer at akramer@bna.com