You
may remember that Richard Prince, the Gagosian Gallery, and Larry Gagosian
have been sued by photographer Donald Graham for copyright infringement in the
Southern District of New York (SDNY). Plaintiffs moved
to dismiss on February 22, asserting a fair use defense (motion).
Appropriation artists
and copyright
Prince used Graham’s Untitled
(Portrait) to create one of the works
presented at his New Portraits
exhibition (see here).
The original image had been cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another
user. Prince reposted it again from his own Instagram
account, adding the comment “ReCanal
Zinian da lam jam,” followed by an emoji (see p. 11 of the motion).
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| Prince stands at the corner of fair use and copyright infringement |
In his motion, Prince placed himself in “a long line of [appropriation] artists”
such as Marcel Duchamp, Jasper Johns and Jeff Koons. The latter has been
involved in several copyright infringement suits over his work, for instance Rogers v. Koons where the Second
Circuit found no fair use. But in Blanch v. Koons, the Second Circuit
found that Koon’s appropriation of a photograph reproduced, at a different
angle, in a painting was protected by fair use. Following this Second Circuit
decision, Judge Stanton from the SDNY denied
plaintiff Blanch’s motion for sanctions, which gave him an opportunity to
explain the dynamic between appropriation artists and copyright:
“Appropriation
artists take other artists' work and use it in their own art, appropriating it
and incorporating it in their own product with or without changes. Because of
this appropriation, often (as in this case) done without giving credit to the
original artist, the appropriation artists can expect that their work may
attract lawsuits. They must accept the risks of defense, including the time,
effort, and expenses involved. While that does not remove the appropriation
artist from the protection of the statute, litigation is a risk he knowingly
incurs when he copies the other's work.”
Is this case the same
as Cariou?
In his motion, Prince argued that, in Cariou v. Prince, “the Second Circuit held that “appropriation
art” created by Prince that is substantially similar to the artwork at issue
here constituted fair use as a matter of law” and argues that the Graham
lawsuit “reflects an attempt to
essentially re-litigate Cariou and should be dismissed with prejudice”(p.
2).
However, every fair use case is different since fair use is
a mixed question of law and fact, as acknowledged by Prince on p. 12 of his motion.
In Cariou, the Second Circuit set
aside five artworks, remanding to the SDNY to consider whether the use of
Cariou’s work was fair. Because the case settled, the SDNY did not have an
opportunity to rule on that point on remand. Whether a court will find this
Prince work to be fair use is an open question.
Is Prince’s character of the use of Graham’s photograph the
same than his use of Cariou’s photographs? The Second Circuit noted in Cariou that “[t]he portions of the [Cariou photographs] used, and the amount of each artwork that they constitute, vary
significantly from piece to piece” (at 699). As the affirmative defense of
fair use is a matter of both law and fact, Cariou
cannot be interpreted as the Second Circuit having given carte blanche to Prince to create any derivative works based on Rastafarian
photographs “as a matter of law.”
Indeed, in Cariou, the Second Circuit
took care to note that its conclusion that twenty-five of Prince’s works were
protected by fair use “should not be
taken to suggest… that any cosmetic changes to the photographs would
necessarily constitute fair use“ (at 708).
Fair use or not?
The Graham photograph is somewhat similar to the Cariou
photographs, as they are classic black and white portraits of a Rastafarian.
However, if the nature of the original work is one of the four fair use factors
used by courts to determine whether a particular use of a work protected by
copyright is fair, the first factor, the purpose and the character of the use, is
“[t]he heart of the fair use inquiry”
(Blanch at 251).
A work is transformative, as explained by the Supreme Court
in 1994, if it does not merely supersede the original work, but instead “adds something new, with a further purpose
or different character, altering the first with a new expression, meaning or
message… in other words, whether and to what extent the new work is
transformative”, Campbell v. Acuff-Rose Music, Inc.,
at 577-578.
What is determining is whether the new work is transformative,
and Prince recognizes this in his motion (p.1). He argued that, by
incorporating Plaintiff’s photograph into a social media post, and adding “Instagram visuals and text,” the
derivative work has become “a commentary
on the power of social media to broadly disseminate others’ work” (p.3).
To create his Canal
Zone series, Prince had torn multiple photographs from the Cariou book, enlarged
them using inkjet printing, pinned them to plywood, then altered them by
painting or collaging over them, sometimes using only parts of the original
photographs, sometimes tinting them, sometimes adding photographs from other
artists. The result was declared fair use by the Second Circuit. In our case, Prince
inkjet printed his original Instagram
repost of the Graham picture, complete with his comment, with no further
change, except for the change in format and size.
But whether a particular work is transformative does not
depend on the amount of sweat of the brow, and a derivative work can be created
by a mere stroke of the pen, such as Marcel Duchamp’s L.H.O.O.Q. Nevertheless, the more detailed the process to
create a derivate work is, the more likely it is transformative.
It remains to be seen if the SDNY will find this new Prince
appropriation work to be fair use. The court is becoming somewhat an expert on
appropriation art. Jeff Koons has recently been sued
in the SDNY for copyright infringement over the use of a photograph by a
commercial photographer, Mitchel Gray. Gray claims that his photograph of a
couple on a beach, which he had licensed in 1986 to Gordon’s Gin for the company to create an ad, was reproduced the
same year by Koons as part of his “Luxury
and Degradation” series. Koons reproduced the whole ad, with no change. Mr.
Gray only discovered this use in July 2015 and filed his suit.
We’ll see how this case and the Koons case will proceed. ReCanal Zinian da lam jam.
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