Is Richard Prince the King of Fair Use?

By Marie-Andrée Weiss

Richard Prince is an appropriation artist whose name became known by every U.S. copyright attorney, after he won a fair use case which became a cause célèbre. The Second Circuit found in Cariou v. Prince that Prince’s use of Alain Cariou’s Yes Rasta photographs to create his Canal Zone series was transformative enough to be fair use.

Perhaps feeling his oats, Prince used images found on Instagram to create his New Portraits series which was presented at the Gagosian Gallery in October 2014. Prince selected several images posted on Instagram by celebrities, or by “Instagramers” famous for their personal style, and posted comments under the images using his own Instagram account, @richardprince4. Some comments were only a line of emojis, other were nonsensical. The artist then took screenshots of the original postings and his comments and printed them on canvas using an inkjet printer.

The exhibition did not generate much comment when it was privately presented at the Gagosian Gallery in October 2014, but when New Portraits was shown to the public at the Frieze Gallery in New York last May, it generated much comment about whether Prince had the right to reproduce the images, including by the subjects and the authors of the photographs.

Is New Portraits protected by fair use?

Prince may very well be trying to elicit more comments, including legal ones, over his appropriation art: the Gagosian Gallery page about the exhibition did not provide much information about the exhibition, but merely featured the pithy warning “Subject to copyright. Gallery approval must be granted prior to reproduction.” Is this phrase business as usual for an art gallery wishing to protect its rights, and those of its artist, or is it Prince’s taunting of the original Instagram’s users,: come and get me, and we’ll fight in court?

Photographer Donald Graham took the gauntlet. He posted on Instagram in October 2014 a photograph of the New Portraits exhibition, which showed Prince’s work reproducing his 1997 “Rastafarian Smoking a Joint, Jamaica” photograph, hung between other paintings, and wrote: “Appropriated Exhibit. The only way you’d know my work was a part of this display is . . . well, that’s just it, you wouldn’t know. #PrinceofAppropriation.”

The Graham photograph had been posted by another Instagram user, apparently without authorization, not by Graham himself. Prince added this comment under the original post: “Canal Zinian da lam jam” and then reproduced the Instagram post, complete with the @richardprince4’s comment, which could be interpreted as a tease, as Graham’s photograph is a black and white image photograph of a Rastafarian, just as Cariou’s photographs used in the Canal Zone series. Graham sent Prince a cease and desist letter over the use of his work, but no suit has been filed.

It remains to be seen if New Portraits will again lead to a copyright infringement suit allowing Prince to test the limits of fair use. Would this defense be successful? In Cariou v. Prince, the Second Circuit put great weigh on whether Prince’s paintings were transformative enough to be fair use, noting that “Prince altered [the Cariou photographs] significantly, by among other things painting “lozenges” over their subjects’ facial features and using only portion of some of the images” (Cariou at 699). By contrast, Prince did not “alter significantly” the original Instagram posts to create his New Portraits works, as he reproduced them in their entirety adding only a comment or two. Adding a comment on an Instagram post is certainly not transformative enough to qualify as fair use.

However, as we know from Marcel Duchamp and his Ready-mades there may be more to art than what meet the naked eye. Richard Prince is an appropriation artist, and thus savvy at deconstructing and reconstructing images. In New Portraits, Prince reproduced the entire photographs and did not add collages and paint as he did in Canal Zone. However, it can be argued that he took these images out of their original context, social media, and then “re-contextualized” them by making them part of an exhibition presented at prestigious art galleries and making them command six figure prices. He may thus comment on social media, on the contemporary art market, on both, or on noting at all. It should be noted that, while the Southern District of New York (SDNY) had found Prince’s use of Cariou’s work not to be fair as it did not comment on the original works, the Second Circuit rejected this holding, finding that “[t]he law imposes no requirement that a work comment on the original or its author to be considered transformative” (Cariou, at 706).

Does New Portraits violate the New York right of publicity?

Even if the fair use defense could indeed protect Prince, he could have to face right of publicity claims. Most of the works from the New Portraits series were screenshots of photographs representing the original Instagram users. Although not simple “selfies”—they are composed with great care–they do represent the likeness of these Instagram users. Could they claim that Prince has violated their right to publicity? Most U.S. states, including New York, where the exhibition was presented, have right to publicity laws. Sections 50 and 51 of New York Civil Rights Law prohibits the use of personal likeness “for the purpose of trade” without written consent.

It has been reported that some of these works have sold for around $100 000, so they have indeed been traded. However, Prince used the likeness of Instagram users for artistic purposes. Could this be used as a defense by Prince if he is sued for a right of publicity violation? This question is so far purely rhetorical, as none of the Instagram users have yet filed a right of publicity suit against Prince. One of them, DoeDeere, who is a professional makeup artist and cosmetics entrepreneur who regularly posts images of herself wearing stunning make up and wigs, stated on Instagram: “No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It’s already sold ($90K I’ve been told) during the VIP preview. No, I’m not gonna go after him. And nope, I have no idea who ended up with it!”

Indeed, filing a right to publicity suit against Prince would not be a slam dunk, especially in the Second Circuit. The SDNY held in 2002 in Hoepker v. Kruger, that the unauthorized use of the likeness of one of the plaintiffs by collage artist Barbara Kruger to create a work was protected by the First Amendment, regardless of whether the court applies the New York standard, which views art as speech trumping privacy whether the use is transformative or not, or the California standard, which requires the use to be transformative (Hoepker, at 350).

New Portraits is shown in London until August 2015. As the U.K. has no right to publicity, Prince does not have to fear that crossing the Atlantic may lead to a suit. Prince recently wrote on the Gagosian Gallery London exhibition page a piece about the show, explaining how he had recently discovered the pleasure of taking pictures with an iPhone. He “asked [his] daughter more about Tumblr. Are those your photos? Where did you get that one? Did you need permission?” Whether one chooses to believe that Prince is naïve enough to ask his teenage daughter copyright questions, or if this phrase is an artful prick, the question of whether Prince indeed needed permission under U.S. law to use these images is worthy of an answer. Richard Prince concluded ”What’s yours is mine.” Could New Portraits be less a traditional art show than a performance piece appropriating a copyright infringement suit, or a command performance where the parties, judges, and attorneys are being provoked to step into the arena at the command of Prince?