Artist Richard Prince’s exhibit entitled “New Portraits’’ was displayed at New York City’s Gagosian Gallery and Frieze New York during the summer of 2015. This exhibit featured screenshots of other people’s Instagram photos. These screenshots were not altered. They were simply the pictures that Instagram users posted, with an addition of Prince’s comments in the comment section of the post. What is remarkable is that the individuals whose likenesses and photographs were used were unaware of the use. Prince did not ask for permission or provide notice. He just used the pictures. Apparently, the art world was pleased with his work, and he has reportedly sold many of the individual works for anywhere from $90,000 to $1 million. How much of that went to the Instagram poster? Likely nothing.
How can this be? Well, ultimately we will see if it can be. There would seem to be compelling copyright infringement arguments as well as rights of publicity arguments (for misappropriation of the person’s likeness). A make-up artist whose likeness was used filed a lawsuit claiming Prince wrongfully created copies of her photo without her consent and “engaged in acts of widespread self-promotion of the copies directed at the public at large.” Lawsuits have also been brought by photographers who claim that Prince stole and unfairly profited from their work.
The other side of the argument is that Prince’s use meets the “fair use” defense to a copyright infringement claim. Under copyright law, “fair use” is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. As we consider Prince’s defense, the questions then become: (1) Were the Instagram photos that Prince took screenshots of copyrighted material; (2) Since the photos were posted on and taken from social media does that make a difference; and (3) Are commentary on photos obtained from social media sufficient to transform the source material to qualify as fair use? All lawsuits pertaining to Prince’s use are currently being transferred to the appropriate federal court or are pending adjudication. Let’s keep our eyes open for new updates.