Copyright

Richard Prince Sued Again [And This Time, He May Not Win]

Richard Prince
Ashley Salazar's Instagram photo and the work from Prince's New Portraits series

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.

 

 

 

 

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

1 Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • It may come down to an argument over damages. Prince can argue his exhibition is a boon to Ashley Salazar far exceeding any monetary loss created by his use of the image.

Orangenius

We built Orangenius to help creators succeed. Our comprehensive platform takes the guesswork out of the business of art, so you can focus on creating. Click to see how Orangenius is revolutionizing the creative economy.

JOIN FOR FREE

The Latest From Artrepreneur

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • How One Artist Uses Instagram to Land Consistent Illustration Gigs

    Illustrator Maria Luque's secret to landing a steady stream of illustration gigs? Just be consistent and post regularly on Instagram. The post How One Artist Uses Instagram to Land Consistent Illustration Gigs appeared first on Artrepreneur. […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]

  • Five Alternative Income Strategies for Independent Artists

    Independent artists shouldn't have to go hungry. We explore five alternative income streams to keep your art business on track. The post Five Alternative Income Strategies for Independent Artists appeared first on Artrepreneur. […]