In today’s digital age, where anyone can post and re-post content that doesn’t belong to them, art appropriation and copyright infringement run rampant. One of the art world’s most infamous repeat offenders, the indelible Richard Prince, has landed himself in trouble yet again. Remember when we discussed Prince’s most recent exhibition, New Portraits, at the Gagosian Gallery, in which the artist took photos of off Instagram of both celebrities and unknown people, blew them up to gallery size, and then aimed to sell them for $100,000 a piece? Well, it seems like the artist – who has already faced several lawsuits in connection with this exhibition – is being sued yet again.
This time, Prince is being sued by California-based makeup artist and model Ashley Salazar. Salazar filed the lawsuit in June after finding that Prince had used one of her Instagram photos for his exhibition. In the image, Salazar is taking a mirror selfie. Prince proceeded to appropriate the photo and alter it slightly by adding colorful cat memes she uses frequently in her Instagram account. Salazar, who claims she copyrighted the mirror selfie in March, says she only recently discovered Prince’s crime. She’s suing both Prince and Gagosian, the gallery representing him during the time of the offense (it’s worth mentioning that Prince is no longer represented by Gagosian.)
Now, Prince is no stranger to the courtroom – he’s been sued at least four times in recent years, for copyright infringement on all accounts. The landmark case that drives Prince’s oeuvre, Prince v. Cariou, allowed the artist to skate out of the claim under a defense of fair use. But will he be able to do so in this case? We’ll discuss below.
Copyright Law and Prince’s Appropriation
We need to give context to Prince’s appropriation of Salazar’s art in order to determine whether or not he could be liable for copyright infringement. U.S. Copyright Law protects creators of works, defined as “original works of authorship, expressed in a tangible medium,” by offering them certain exclusive protections of their work. A copyright holder has the exclusive power to distribute, reproduce, perform, or adapt the work. Only they can grant permission to someone else to hold any of these rights over their work, and that permission must be express.
But an important aspect of copyright law, and one that’s especially at play here, is the moment in which copyright is granted over a work. You see, copyright law only protects the expression of an idea, and not the idea itself. For instance, I might have an idea to write a biography about Mr. Prince, and maybe I have an idea for how I might go about structuring it. Unless I actually out that idea on paper, my idea has no protection. So if I tell a friend, and he goes and writes it, I’m totally unprotected because I didn’t execute my idea. You can’t protect something that doesn’t exist in some tangible, concrete form.
Similarly, the work has to be original, meaning that it has to have been conceived and carried out in such a way that hasn’t been done before. Likewise, it’s a relatively low bar – for example, in an earlier Art Law Journal post regarding Ellen Degeneres’ infamous selfie, we discussed what “original” means in the context of a photograph. A person taking a photo composes the shot, chooses the camera angles, captures the correct lighting, and frames the image, etc., which are all creative choices. Even a quick spur of the moment shot, like a selfie, still rises to the level of creativity required for copyright protection.
Here’s where the case gets interesting. As we discussed previously, Prince has been sued in connection with his New Portraits series in the past. However, in those cases, the images Prince appropriated were often taken by someone else. Thus, the subject of the photo – the person who is often suing Prince – actually has no right to do so, since they don’t hold the copyright in the photo. Sure, it’s their likeness and image that’s on display, but it’s not their creative work product. Their copyright protections haven’t been infringed upon, the photographer’s have, and only he has the option to seek redress for the harm.
Now, since we know that Salazar took the photo herself, then we know she absolutely has legal standing to sue Prince and recover for his infringement. But will she win?
Prince and his Fair Use Scheme
There is one exception to copyright infringement and one that Prince has often hung his hat on. Fair use allows a limited interpretation of a copyrighted work, even where there’s no expression permission from the copyright holder. In the eyes of the law, fair use must exist in order to protect the inherent fabric of copyright law, which is to bolster and encourage the widespread dissemination of creativity and expression. After all, what artists hasn’t, at one point or another, been inspired by another artist enough as to give rise to possible copyright infringement?
In order to ensure that fair use isn’t abused, courts have developed a four-factor test to determine whether an infringement of someone’s copyright. Not every factor has to be met in order to satisfy fair use, which tends to make a court’s decision arbitrary in some cases. Nonetheless, courts define fair use by determining:
- the purpose and character of the use; including whether such use is of a commercial nature or is for nonprofit educational purposes; if you’re using the image for purposes of commentary, criticism, reporting, or teaching, then it’s probably okay. For example, that means you can’t use a photo simply to enhance a blog post, or use a photographer’s image of a blouse in order to sell that blouse on your website. But you can use it if you want to explain a technique or report on a new trend.
- the nature of the copyrighted work; consider factors such as whether the work is informational, just entertaining, benefits the public or spreads new ideas. How this factor will play out depends on the messaging – the artist can make an argument that they’re making some kind of commentary on society that’s never before been considered.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; amount and substantiality of the portion used of the copyrighted work will hinge on how much of the overall content was appropriated from someone else. For example, a blogger using photos coming from the same source, without permission, could face a pretty serious problem.
- the effect of the use upon the potential market or value of the copyrighted work, your use of the work cannot affect the work’s potential for sale in the market.
Since Prince has been on the right side of fair use before, he has a pretty good idea of what may or may not constitute fair use. The reality is, arguments can be made for either side – on the one hand, he can argue that his use of the Instagram images is a commentary on the banality of our society today. On the other hand, Salazar can argue that his entire exhibition was made up of appropriated Instagram photos, and therefore stepped over the bounds of fair use. It’s up to the courts to decide, but in our opinion, Prince may have a hard time skating out of this one. Where a defense of fair use is absent in a copyright infringement claim, then Prince may have no choice but to pay up.