Richard Prince’s Loss Over Appropriated Art Gives Copyright Law A Chance

Richard Prince’s Loss Over Appropriated Art Gives Copyright Law A Chance

A federal court judge just rejected Richard Prince’s claim that his use of another artist’s work was so patently innovative, he shouldn’t have to go to trial for charges of infringement.
Robin Ridless
By

Appropriation art is often billed as democratizing, as striking a blow against the commodified art object and the copyright regime that supports it. Meanwhile, the artist doing the appropriating sells his copies to an exclusive club whose members get the joke and can afford the multiplier effect that comes with the artist’s ironic exploitation of someone else’s original, not the least of which is the artist’s adroit use of his own name.

The appropriation artist Richard Prince is a case in point. When we last heard from Prince, he was busy enhancing his reputation as an elite iconoclast by making the meaningless gesture of disclaiming authorship of an Instagram portrait he had sold to Ivanka Trump. This was not the first time the artist felt entitled to wave his wand over a work of art and pronounce it to be something else. Fortunately, on July 18, the U.S. District Court of New York for the Southern District put a crimp in his one-man prestidigitation.

Limits to the Culture of Narcissism

The district court then filed its order in Graham v. Prince rejecting Prince’s motion to dismiss a copyright infringement claim brought in 2015 by the fine-art photographer Donald Graham. The alleged infringement involved Prince downloading and reprinting an Instagram copy of a photograph by Graham titled “Rastafarian Smoking A Joint.”

The silk-screened print on stretched canvas of Graham’s digitized edition, framed by Instagram marginalia, formed part of a series called New Portraits. The series was initially exhibited at the Gagosian Gallery among a row of similarly produced reprints of posts of self-styled exhibitionists that Prince had downloaded from the site without permission after adding lewd, nonsensical, and slangy comments of his own, freezing the interactions in a screengrab, and enlarging the results. Eventually, celebrities caught on and commissioned Prince to Prince-cify their Instagram selfies. That is how Trump came to purchase her redoubled self-portrait for $36,000.

But Graham did not volunteer his professional image either to the Instagram user who unauthorizedly took it from his website, or to Prince, who reposted it, posed it with his own additions, and turned it into “Untitled.” Graham sued. Although Prince’s changes to Graham’s original were minimal, Prince appeared to believe that a previous appellate court victory, Cariou v. Prince, which coincidentally also involved photographs of Rastafarians, guaranteed him a wide berth. His motion to dismiss reflected that confidence. In it, he relied on his earlier-deployed fair-use defense to justify his argument for early-stage dismissal.

Fair use is an exception to copyright law. It is designed to protect free speech against encroachments by those with proprietary rights over creative content. Unfortunately, it too often winds up being a loophole for uber-artists who, with the support of the art establishment, can not only afford to work the legal system but gain reputation by doing so. (Even Prince is wont to tweet whines over the costs of the lawsuits against him and his martyrdom at the hands of photographers who “mooch” off him.)

Slapping on a thin veneer of art theory, Prince maintained that his near-identical Instagram Rastafarian had so evidently altered Graham’s image, “transformed it,” that a trial on the merits was unnecessary. His work, he declared, was “fair use as a matter of law.” Transformativeness is the key that unlocks the fair-use defense and, if the defendant is lucky, shortens his court fight.

But in what could be a bellwether decision for fair use, the court didn’t go for it. Significantly, the court rejected Prince’s theory that this was a relitigation of Cariou. That rejection means the court was not snowed by the whole halo-wearing ideology of experimentalism. It did not automatically accept that crude reproductions of snatched originals in a contemporary medium make some sort of ingenious statement about who we are as a society and thus on their face constitute a far-reaching metamorphosis.

Overplayed Warhol Tricks No Longer Renew Perspective

As things now stand, if Prince’s copying meets the statutory test for transformativeness, he will have to prove it. That will be far more difficult than merely moving the court to reach that conclusion by a side-by-side comparison. It will require a showing, among other things, that Graham’s picture was integral to Prince’s social commentary, such as it was, rather than just a cool image that Prince liked a lot and exploited to save himself work.

No doubt the usual adoring art experts will speed to the rescue and pontificate on the meta-portrait’s gravitas. The problem is, Prince could have made his point in countless other ways. And did make it, in fact, judging from his reputed $100,000 sales of the near-literal likenesses of anonymous Instagram “personalities” who lacked the wherewithal to fight back.

One of the issues a trial will have to confront is whether a conceptual change—assuming there has been one—in an appropriated art object is sufficient to justify a taking absent marked physical alteration. Cariou left the question open. Putting ordinary objects into sacrosanct spaces like museums and white-box galleries, “recontextualization,” as it is called, is the type of avant-garde art that leaves the populace skeptical (“Is It Art?”) and becomes the butt of its jokes.

Art historians will testify the practice has a long and vaunted tradition. Indeed, it does. But our habits of cultural consumption change, and today we must ask: Does this overplayed Warholian strategy still have the capacity to shock and surprise?

If not, a jury could conclude there is a disconnect between our art institutions, who continue to revere this sort of aesthetic horseplay, and the “reasonable observer,” whose hypothetical perceptions, legally, are the gauge. Glorifying surpassed paradigms, that is, may not warrant giving Prince a free pass. Legitimizing the use of others’ accomplishments to feed the beast of celebrity ego just may be unfair and deleterious to the greater culture.

But Controversy Sells

A last and portentous part of the court’s decision concerned damages. Prince asked that the court limit in advance the amount of damages he would have to pay in the event he loses. He argued that under current law, he should have to cough up no more than the sale proceeds of “Untitled.” This sum would, of course, be paltry compared to the value of the publicity surrounding the controversy.

The court refused. Perhaps it was smarting from Prince’s high-handed tweets balking at being hauled into court, which Graham meticulously quoted in his papers. Or perhaps it was irked by the license Prince took in using Graham’s image, as well as his reincarnation of it, for billboard advertising and Twitter rants. In any case, the court’s refusal means that the exorbitant gains from Prince’s sale of the other non-contested Instagram portraits are now in play. The stakes have just climbed like the Space Launch System.

Did Prince invent a novel genre, fairly earning a new income stream by taking to a new level society’s voracious craving for self-eroticism? Or did he, cunning pitchman that he is, purposely take Graham’s photograph to push fair use to an absurd extreme and thereby engage the court in a public duel, perhaps tempting it over the line to sheer permissiveness? That is, after all, the vanguardist’s endgame. Either way, a boxing match with authority sells, and nowadays there are plenty of cheap seats courtesy of Twitter.

Still, now that the court has decided Prince’s use of Graham’s photograph and “Untitled” to advertise and vent his ire on Twitter may be taken into account in calculating his “indirect profits,” a counter punch has landed. Things have gotten interesting. Anybody taking odds?

Robin Ridless is a lawyer in New York City.

Copyright © 2017 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.

comments powered by Disqus