Appropriation or Art? Instagram Print Sale Sparks Copyright Suit

By Ephrat Livni, Esq. on January 13, 2016 | Last updated on March 21, 2019

If you print and enlarge a photo that someone posts on social media and display it in a gallery, is it art? Perhaps more importantly, is it your art?

Photographer David Graham does not think so and is suing Richard Prince and his gallerist Lawrence Gagosian for copyright infringement. The suit raises questions about fair use in the age of social media. But the notion of fair use is not new to Prince who made his name in the seventies "rephotographing" other artists' works. He is, according to Photo District News, an "appropriation artist."

What Is Fair Use?

Creators can limit how others use their work with copyright. It applies to literature, music, movies, sound recordings, pantomime and choreography, pictorial, graphic and sculptural representations, and architectural designs.

But there are limits to the limitations of copyright, or exceptions for fair use. An artist's work can be fairly used for criticism, comment, reporting, teaching, scholarship, and parody.

Fair use tries to balance the artist's need to protect their work with society's need to engage with creations with relative freedom. Some would say that fair use protects artists too insofar as it allows their creations to be relevant.

If no one could report on, criticize, study, or even mock an artist's work, what good would it do? How would it get out? Who would it reach? Because art is as much about generating discussion as it is about making decorative stuff, fair use gives society room to engage with its artists' works without reprisal. But of course not everyone agrees on how far fair use extends.

Unfair Use?

Richard Prince has already been through a fair use battle over appropriated photographs before, and his appropriations have (mostly) been found fair. To the extent that he adds something to the original works that transform their aesthetic, he does not infringe copyright.

This latest suit filed by photographer David Graham is based on an inkjet printout of Graham's photograph, "Rastafarian Smoking a Joint." The image shows a dreadlocked Rastafarian that Graham met when he was trekking in Jamaica. It was posted on Instagram (by someone other than Graham), and Prince then did a "screen save" and enlarged and printed the photo, including the social media likes, comments, and Instagram account information.

The printout was sold at the Gagosian Gallery as part of a "New Portrait" series of 37 such works. The show reportedly drew widespread vitriol but some works sold, including the photo that Graham took. Images reportedly sold for about $90,000.

Although other artists have expressed outrage about Prince's move, Graham is the first to file suit. Prince has yet to respond to the filings but he is expected to defend his works as fair use.

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