Copyright law and social media enjoy an interesting dance together. Social media platforms permit the posting of user “content” for other users — subscribers if not the entire online world — to see. Some platforms are even wholly focused on the sharing of images (Pinterest) or audiovisual works (YouTube). Sometimes the content reflects the user’s own authorship; other times it may involve the sharing of another creator’s works (and not always legally). Social media platforms enjoy a certain “safe harbors” from copyright infringement liability for the works posted by their users, whether via the “fair use” doctrine or Section 512 of the Digital Millennium Copyright Act (which limits the liability of service providers for the transmission of copyrighted works through their platforms) to name a few. But my focus here is not on the social media sites themselves, but on an interesting turn of events involving the artist Richard Prince and his use of social media posts in his artwork — more specifically, as his artwork. Like everything else with intellectual property, there is far more here than meets the eye.
For those not “in the know,” Prince is an American painter and photographer who is somewhat controversial; however, the controversy is a bit different than what you may think. Beginning in 1977, Prince began rephotographing the works of others. An example of this would be his work Untitled (Cowboy), which apparently is a rephotographing of a photograph photographer Sam Abell used in a Marlboro cigarette ad, which according to Wikipedia “was the first rephotograph to be sold for more than $1 million at auction at Christie’s New York in 2005.” Regardless of the historical context, Prince’s work has become the subject of two copyright lawsuits filed by artists claiming infringement by Prince of their underlying works. The first case involves a photograph, by professional photographer Donald Graham, which he titled Rastafarian Smoking a Joint. The other case involves a photograph by fine art photographer Eric McNatt of musician/artist Kim Gordon. The artworks at issue? Prince basically enlarged the photographs from Instagram posts containing the works, and added new comments to the enlarged posts along with emojis. This begs the question: Does the reuse of others photographs in this manner constitute “fair use” for copyright purposes?
From a historical perspective, “appropriation art” is not something new. From Pablo Picasso’s “synthetic cubism” in the use of newspaper clippings to create forms, to pop artist Andy Warhol’s re-imagining of Campbell’s Soup can labels to Roy Lichtenstein’s appropriation of comic book pictures in his paintings (such as Masterpiece), such art has been both criticized and lauded. It seems that Prince feels that enlarging the works as presented in a social media post, along with added commentary and emoji elements, transform the works into something more, representing a new portraiture. At least his attorneys have valiantly argued this point, asserting that that their client’s work is transformative and constitutes “fair use” of the underlying images as a commentary on the “pop culture and narcissism” of social media.
This is not Prince’s first run-in with alleged copyright infringement. A little over a decade ago, photographer Patrick Cariou sued Prince, the Gagosian Art Gallery, Lawrence Gagosian, and Rizzoli International Publications over Prince’s “Canal Zone” exhibit (which used 35 photographs from Cariou’s out-of-print “Yes, Rasta” book that depicted Cariou’s experiences in Jamaica’s mountains and villages). In fact, some of Prince’s pieces barely changed the underlying works, while others superimposed gas masks, blotches of paint, or other elements over the subjects. Although the federal district court found fair use, the US Court of Appeals for the Second Circuit later reversed, finding 25 of the 30 works at issue in the case “transformative” in nature and therefore fair use. That case eventually settled in 2014, but it has left a lingering question as to what constitutes “transformative” use in such circumstances.
Fair use in copyright law permits the use of another’s copyrighted work for certain enumerated purposes (such as commentary, criticism, news reporting, teaching scholarship, and research). In determining whether fair use exists, however, Section 107 of the Copyright Act lists four factors to be included when determining fair use in a particular case:
(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.
This seems straightforward, but application of these factors requires rigorous application to the facts in a specific case. Moreover, the federal courts are not limited to only these factors — they operate as guidelines in determining fair use.
Notwithstanding the foregoing — and unfortunately for Prince — he is likely fighting an uphill battle here. His motion to dismiss the case brought by photographer Graham was denied by the federal district court, holding that Prince’s work based upon ratajay92’s Instagram post is not transformative as a matter of law. He is now seeking summary judgment in both cases (having engaged in discovery), premised upon the same arguments that the use is transformative and therefore fair use. I will not delve into the fair use factors analysis or other elements here in detail (and leave that to the court) — my point here is that Prince faces a more difficult proposition than other appropriation artists before him. Unlike Warhol’s Campbells Soup Cans (which were paintings by him of the cans but with slight variations in the lettering and in the hand-stamped fleur-de-lis symbols on the bottom of each can) or Lichtenstein’s Whaam! (depicting a fighter plane shooting a missile, conceived from several DC Comics comic book panels and “presenting it as a diptych while altering the relationship of the graphical and narrative elements”), Prince is attempting to convey an artistic point of view on cultural use of social media with these works by simply (1) enlarging the original posts and (ii) adding in a fake comment or other emoji(s). Unlike transposing various works into one, or even reimagining various photos into a visual mosaic, Prince is relying entirely upon size and original commentary as sufficient from a fair use standpoint. Whether this is enough to consider his artwork transformative is anyone’s guess.
Artists can be complicated; understanding their artwork sometimes more so. One can argue whether Prince is trying to convey artistic expression, but his motives appear genuine. Granted, the four factors may yet weigh in Prince’s favor, but it may be difficult to draw the line here (pun intended). Whether such changes will be held to rise to the level of sufficient transformation to constitute fair use is anyone’s guess, but is sure seems like a thin line here any way you draw it.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at [email protected]