Richard Prince is a New York artist known in part for art that incorporates the work of others. One of his most recent displays – which ran in September and October 2014 in the Gagosian Gallery – is New Portraits, which consists of thirty-seven inkjet prints. The prints are Instagram posts from third parties that have been enlarged and printed on canvases. Prince modified the canvases by enlarging the pictures and adding emojis and random sentences underneath the pictures. Individual canvases sold for up to $100,000 per work at the New York Frieze art fair. One of the pieces included a photograph, taken by Donald Graham, of a Rastafarian smoking a joint, shown above.

Graham, a photographer, initially reached out to Prince and the Gagosian Gallery in February 2015 with a cease and desist letter. Graham demanded that Prince and the Gagosian Gallery cease displaying the canvas. When Prince and the Gagosian Gallery did not comply, Graham sued for copyright infringement. In his lawsuit, Graham asserts that the Prince piece is not an original work because it was not modified sufficiently. Graham also asserts that Prince “achieved notoriety in the ‘appropriation art’ industry for his blatant disregard of copyright law. Mr. Prince consistently and repeatedly has incorporated others’ works into works for which he claims sole authorship with obtaining permission from, or providing compensation, recognition or attribution to, the original work’s author.”

Prince – who previously won a lawsuit under a theory of fair use – may have a more difficult time with this case. Since Graham sells his photographs, as part of the fair-use analysis, the court will have to consider whether Prince’s art impinges on Graham’s market for his original works. Additionally, the court will consider whether the source of the photograph – social media – plays a role in transforming the art to a new context. Thus, the court’s ruling may affect third party use of social media postings going forward.

See original blog post regarding Richard Prince selling the Instagram pictures for around $90,000 each.

Sources: http://www.theguardian.com/artanddesign/2016/jan/04/richard-prince-sued-copyright-infringement-rastafarian-instagram https://news.artnet.com/market/donald-graham-sues-gagosian-richard-prince-401498 https://news.artnet.com/art-world/richard-prince-lawsuit-expert-opinions-402173

For more information on this topic, please visit our Copyright Litigation service page, which is part of our IP & Business Litigation practice.

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