The prince of appropriation strikes again! Visual artist Richard Prince caused a major uproar in the art world with his latest exhibition, New Portraits. The series of photographs, which features enlarged screenshots of Instagram posts made by different users, has been the object of controversy after it was reportedly found that Prince never asked for permission to use these pictures. Considering that one of these photographs recently sold for $90,000, New Portraits begs the question of whether Prince can argue fair use in this situation.
At first sight, Prince’s new exhibit might seem like a blatant infringement of copyright, but as with all of his work, Prince plays with details. When trying to determine whether a certain work falls under fair use, US courts look at four elements: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work. However, the underlying concept at the core of the fair use doctrine is the concept of transformative work: “in order to qualify as fair use, a new work must generally alter the original with ‘new expression, meaning or message.’” Thus, the more transformative the work is, the less significant the consideration given to those other factors will be.
Combining all these elements makes it difficult to predict the outcome of a potential lawsuit against Prince. The only addition to the original pictures, aside from Instagram's distinctive visual characteristics, is a comment from what seems to be Prince’s very own account on the social media platform. Whether or not such an addition could be considered enough to make New Portraits transformative is uncertain. Courts have stated that “cosmetic changes [to a certain work do not] necessarily constitute fair use. A secondary work may modify the original without being transformative.” As explained in Cariou (Prince's most recent infringement case), such a transformation must be noticed by a “reasonable observer,” the artist’s original intent therefore being irrelevant. The application of the reasonable observer test has not been clarified further by the Second Circuit.
As with the majority of Richard Prince’s work, New Portraits has sparked very polarized reactions. Some have acclaimed the artist, qualifying his art as “truly brilliant,” since Prince’s work “stir[s] up a public response, as art technically should do.” Yet, regardless of the praise the appropriation artist has received from connoisseurs such as Peter Schjeldahl, art critic for the New Yorker, some see New Portraits as intellectual laziness. Others go as far as saying that his work has no inherent value, and the only explanation for people’s willingness to shell out so much money for his work is that it hangs in a gallery.
So far, none of the concerned original posters have expressed a desire to sue Prince. The most proactive action against the artist has been taken by Missy Suicide, founder of the model website Suicide Girls. Following Prince’s use of five screenshots from Suicide Girls’ Instagram account, she decided to take an alternative route and sell exact copies of those screenshots for 90 dollars (a choice Richard Prince did not seem to mind whatsoever).
The lack of legal action to date does not necessarily mean there is no case to be made. Some think Instagram might have one, contractually speaking. According to their terms of use, users of the social media platform cannot “reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.” Considering the nature of Prince’s exhibit, the appropriation artist seems to have contravened those terms. However, while suing the artist who never cared for copyright seems appealing, some believe it might just play into his favour. That is, such a decision could make Prince “look like he’s thinking about rights in digital spaces, and that the work is questioning authorship in contemporary society,” therefore adding a new message these photographs.
Regardless of Prince’s intentions, his work undeniably offers occasion to question our current copyright system. As fair use is an institution whose purpose is to “promote the progress of science and useful arts,” it is a legitimate concern to ensure its current boundaries allow copyright law to successfully meet that goal. New Portraits might not please everyone, but changes are often sparked by controversy and that is a game at which Richard Prince clearly excels.
Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal