People interested in the U.S. fair use doctrine owe appropriation artist Richard Prince gratitude for providing several interesting fair use cases to monitor and comment about.
Prince has been the defendant in several high profile cases in the Second Circuit (see here and here). He famously won the Second Circuit Cariou v. Prince case (see here), where the Court of Appeals found that Prince’s use of Patrick Cariou’s photographs to create his thirty paintings and collages featured in his Canal Zone exhibition was fair use, as it was transformative.
Photographer Donald Graham filed a copyright infringement suit against Prince in 2016 (see here and here), claiming that Prince’s use without permission of Graham’s Rastafarian Smoking a Joint photograph, to create an Untitled (Portrait) featured in Prince’s New Portraits exhibition, was copyright infringement. Prince claims it is fair use.
On July 18, U.S. District Judge Sidney H. Stein from the Southern District of New York allowed the case to go forward, as, while granting Prince’s request to dismiss Graham’s demand for punitive damages, he denied Prince’s motion to dismiss the case. The case is Graham v. Prince, 1:15-cv-10160.
Judge Stein noted that, because the fair use defense is fact-related, discovery will be necessary to conduct the fair use inquiry. Therefore, the case cannot be dismissed and will have to go forward. Judge Stein quoted the Second Circuit in Cariou v. Prince, which stated that finding whether a particular use is fair or not requires “an open-ended and context-sensitive inquiry.”
|Is this a dead end?|
Prince used Graham’s work almost in its entirety, when he printed and exhibited the original work as originally cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user and finally reposted by Prince on his own Instagram account. Prince added the nonsensical comment “ReCanal Zinian da lam jam,” followed by an emoji. Is this add-on enough to make Prince’s work transformative enough to be found fair use?
Prince argued that the use was transformative as it added new messages such as “a commentary on the power of social media to broadly disseminate others’ work,” an endorsement of social media’s ability to “generate[ ] discussion of art,” or a “condemnation of the vanity of social media.”
Judge Stein was not convinced, finding “evident” that Prince’s work is not “so aesthetically different” from the original work and thus not transformative enough. Untitled (Portrait) does not manifest “an entirely different aesthetic” from the original work, as required under Cariou. Unlike the works featured in the Canal Zone exhibition, Untitled (Portrait) does not render the original work, according to Judge Stein, “barely recognizable” as Princes works did in Cariou. Instead,
“[t]he primary image in both works is the photograph itself… Untitled simply reproduces the entirety of Graham’s photograph – with some de minimis cropping – in the frame of an Instagram post, along with a cryptic comment written by Prince… There is no question that, notwithstanding Prince’s additions, Graham’s unobstructed and unaltered photograph is the dominant image in Untitled.”
Judge Stein concluded that “[b]ecause Prince’s Untitled is not transformative as a matter of law, the Court cannot determine on a motion to dismiss that a “reasonable viewer” would conclude that Prince’s alterations imbued the original work “with new expression, meaning, or message,” quoting the U.S. Supreme Court Campbell v. Acuff-Rose Music 1994 case.
“Given Prince’s use of essentially the entirety of Graham’s photograph, defendants will not be able to establish that Untitled is a transformative work without substantial evidentiary support. This evidence may include art criticism, such as the articles accompanying defendants’ briefing, which the Court may not consider in the context of this motion.”
Judge Stein called Cariou v. Prince a “prequel to this action.” However, his fair use analysis does not bode well for Prince, who may this time be found to have appropriated a bit too much. To be continued…