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Appropriation or Art? Court Orders Richard Prince to Pay Damages in Highly Anticipated Copyright Lawsuit

February 28, 2024

screen shot from the Gagosian site

screen shot from the Gagosian site

By Olivia Zinzi

On January 25, 2024, Judge Sidney H. Stein in the Southern District of New York issued a final judgment in Graham v. Prince and McNatt v. Prince, resolving a yearslong legal debate.[1] In 2015 and 2016, two photographers brought copyright lawsuits against American artist Richard Prince and co-defendants Laurence Gagosian, Gagosian Gallery and Blum & Poe Gallery, accusing the artist and galleries of using their images without explicit permission or license in Prince’s “New Portraits” series.[2]

“New Portraits” debuted at Gagosian in 2014 and Blum & Poe in 2015, and the exhibit involved printed photographs juxtaposed on an Instagram-style backdrop placed onto large canvases with comments and captions beneath the photos.[3] The Prince judgment settled a longstanding dispute and could have ramifications for artists’ use of each other’s work.

Who is Richard Prince and why is that important?

Richard Prince first entered the art scene in the late 1970s.[4] He soon became known for altering and reproducing the compositions of other artists and appropriating images from advertisements and mass media.[5] Prince’s work received critical acclaim, and his success culminated in several major solo exhibitions at museums like the Whitney Museum of American Art (New York), the Solomon R. Guggenheim Museum of Art (New York), and the Bibliothèque nationale de France (Paris).[6] His pieces are in the permanent collections at the Metropolitan Museum of Art (New York), Museum of Fine Arts Collection (Boston), Museum of Modern Art (New York), and the Victoria and Albert Museum (London).[7] Prince has been sued multiple times for copyright infringement.[8]

Why Was He Sued (again)?

In connection with the New Portraits, there are two lawsuits, Graham v. Prince and McNatt v. Prince. Both concerned misappropriation of photographs in Prince’s project as a purported commentary on social media and art.[9]

In Graham, artist Donald Graham owned the copyright for his photograph Rastafarian Smoking a Joint and accused Richard Prince of infringing on his work when he created Untitled (Portrait of a Rastajay92). Prince incorporated Graham’s photograph in his work Portrait of a Rastajay92, which was exhibited at Gagosian’s Madison Avenue Gallery in 2014 and featured on the promotional billboard materials for the Gagosian’s exhibition.[10] Prince sold Portrait of a Rastajay92 to the Gagosian Gallery (the “Gallery”), and the owner of the Gallery, Lawrence Gagosian, later purchased the work from the Gallery.[11] In 2015, Graham sued Prince and the Gallery for copyright infringement seeking the profits the Gallery and Prince earned from selling the allegedly infringing work and sued Lawrence Gagosian to recover “unrealized profits” to be earned if the owner resold Portrait of a Rastajay 92.[12] The court granted partial summary judgment in favor of the Gagosian defendants on the issue of indirect profits.[13]

(Credit: Complaint S.D.N.Y. https://www.courtlistener.com/docket/4356365/graham-v-prince/)On the left is Graham’s photograph Rastafarian Smoking a Joint and on the right is Prince’s Portrait of a Rastajay92.
Complaint S.D.N.Y. https://www.courtlistener.com/docket/4356365/graham-v-prince/ On the left is Graham’s photograph Rastafarian Smoking a Joint and on the right is Prince’s Portrait of a Rastajay92.

 

The second suit, filed in November 2016, McNatt v. Prince, concerns photographer Eric McNatt who accused Prince of copyright infringement and misappropriation of his portrait of Kim Gordon.[14] Prince incorporated McNatt’s photograph into his work as an Instagram post, similar to his work on Rastafarian Smoking a Joint. Prince’s reproduction of McNatt’s work was shown at the art gallery Blum & Poe in Tokyo in 2015 and eventually sold by Blum & Poe.[15]

Complaint S.D.N.Y. https://www.courtlistener.com/docket/4539741/mcnatt-v-prince/On the left is McNatt’s Kim Gordon I and on the right is Prince’s Portrait of Kim Gordon
(Credit: Complaint S.D.N.Y. https://www.courtlistener.com/docket/4539741/mcnatt-v-prince/) On the left is McNatt’s Kim Gordon I and on the right is Prince’s Portrait of Kim Gordon

What were the legal arguments?

In Graham and McNatt, the plaintiffs sought compensation from Prince and the Galleries that sold his pieces for artwork they saw as infringing on their copyrights. However, Prince and the Galleries disagreed and subsequently moved to dismiss the lawsuits. Judge Stein rejected Prince’s motions and allowed the case to proceed.

Prince’s legal team asserted a fair use defense, arguing that by adding the Instagram frame and interface along with likes and comments, as well as the “intentional cropping of images” and “absurdly proportioned scale,” Prince had transformed the image.[16] The main legal question boiled down to the validity of Prince’s fair use argument.

Under the Copyright Act of 1976, fair use is an affirmative defense to federal copyright protection.[17] Fair use protects a creator’s ability to build upon prior art and is a check on the power that copyright affords to its rights holders. U.S. courts, based on the “totality of the circumstances,” look at four factors to determine whether a particular use falls under this narrow exception.[18] The four factors are (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used; and (4) the effect of the use. “Purpose and Character” considers whether the new work “transforms” the previous work either through a new perspective, meaning, message or purpose.[19] “Nature of the copyrighted work” assesses the extent to which the work is a creative or imaginative work, therefore determining if it is the type of work that is integral to copyright’s core goal of furthering creativity.[20] “Amount and substantiality of the portion used,” requires the courts to look at the quantity and quality of the copyrighted portion used in the allegedly infringing work.[21] The Effect of the Use examines the potential market for or value of the copyrighted work.[22] No one factor is determinative on its own, though the first and fourth usually have the most weight.[23]

According to the plaintiffs, Prince reproduced their works without making substantive changes of his own but according to Prince’s lawyers, he “transformed” the photographs when he produced Instagram screenshots of them along with added commentary in the form of a caption and comment.[24] Prince argued that he transformed “austere” images of “a female rocker in a defiant pose” and “a Rastafarian smoking marijuana” into an “ode to social media.”[25] Ultimately, this argument did not convince the Court.

Instead, Judge Stein ruled that Prince’s modifications to Graham’s photograph—one line of text and spatial differences in cropping and scale—were insufficiently transformative. Judge Stein agreed with the plaintiffs that Prince had not materially altered the composition, presentation, scale, color palette, and media originally used by Graham and McNatt. The cases were pending in the Southern District of New York until the Warhol decision of 2023.[26]

When’s the Court Date?

In a pre-trial conference on January 19, 2024 Judge Stein said the fair use of the photographs was a mixed question of law and fact, and one that would not easily be decided using the fair use test.[27] Graham and McNatt’s trials had been scheduled to start in February.[28] Two judgments filed in New York awarded damages to Graham and McNatt in the amount of five times the sales price of Prince’s “New Portraits” works produced from Graham’s Rastafarian Smoking a Joint and McNatt’s Kim Gordon 1.[29] Following negotiations, Prince agreed to pay $200,000 to Graham, $450,000 to McNatt and $250,000 in other costs.[30] These penalties were far greater than the retail prices of Prince’s pieces.[31]

Judge Stein dismissed Prince’s defenses and enjoined the defendants from making any future modifications, reproductions, distribution, promotion, derivatives or sales of Graham and McNatt’s works.[32]

What is the Importance of this Outcome?

Not only copyright lawyers but also gallerists and artists were anxiously awaiting the Prince rulings to see how the Supreme Court’s recent decision in Andy Warhol Foundation For the Visual Arts, Inc. v. Goldsmith et al would affect the Prince infringement cases. In Goldsmith, the U.S. Supreme Court ruled that to avoid copyright infringement, a second artist who bases a new work on an earlier one must have a compelling justification to use the first image when the two works have a highly similar commercial use.[33] The Court decided 7-2 against the Warhol Foundations’s fair use defense for a painting appropriating a photographer’s portrait of the musician Prince.[34] Experts guessed that the Goldmith ruling would influence the Richard Prince case but it did not have much of a spillover effect.[35]

Despite the factual similarities in the Prince and Goldsmith litigations, the Prince settlement and limited judgment deprives attorneys and artists of clarity regarding fair use since there was not a full decision assessing each of the fair use factors. The final judgments thus do not serve as a clear reference point for future courts when it comes to applying and interpreting the fair use defense.[36]

After Cariou v. Prince, a prior copyright infringement case against both Richard Prince and Gagosian, the Gallery continued to represent the controversial artist and is continuing to do so now with the next solo show scheduled to start on March 9.[37]

Prince is still a darling of the blue chip collectors and his works sell for record prices at auction. What are appropriation artists and galleries that represent them to take away from the latest chapter in the Prince brush up with copyright law? In an interview in 2016, at the age of 67, amid the earlier appropriation controversy, Prince told Vulture “I’m not going to change, I’m not going to ask for permission, I’m not going to do it.”[39] Now at 74, Prince is keeping effectively silent with no recent posts on Instagram or X (formerly known as Twitter). Might he get sued again for making …. art? Only time will tell.

Suggested Readings:

Carl Swanson, Is Richard Prince the Andy Warhol of Instagram?, Vulture (Apr. 18, 2016), available at https://www.vulture.com/2016/04/richard-prince-the-andy-warhol-of-instagram.html.

Matt Stevens, Richard Prince to Pay Photographers Who Sued Over Copyright, New York Times (Jan. 26, 2024), available at https://www.nytimes.com/2024/01/26/arts/design/richard-prince-copyright-lawsuit.html.

About the Author:

Olivia Zinzi is a Legal Intern at the Center for Art Law. She is a 3L at Northeastern University School of Law and received her BA in government and art history from Georgetown University. She is an Articles Editor for the Northeastern University Law Review and is interested in intellectual property, corporate law and technology.

Sources:

  1. Tessa Solomon, Court Releases ‘Final Judgement’ in Richard Prince and Galleries Copyright Cases, ArtNews (Jan. 26, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  2. Tessa Solomon, Court Releases ‘Final Judgement’ in Richard Prince and Galleries Copyright Cases, ArtNews (Jan. 26, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  3. Matt Stevens, Richard Prince to Pay Photographers Who Sued Over Copyright, New York Times (Jan. 26, 2024), available at https://www.nytimes.com/2024/01/26/arts/design/richard-prince-copyright-lawsuit.html. ↑
  4. Richard Prince – About, Gagosian, available at https://gagosian.com/artists/richard-prince/. ↑
  5. Richard Prince – About, Gagosian, available at https://gagosian.com/artists/richard-prince/. ↑
  6. Richard Prince – About, Gagosian, available at https://gagosian.com/artists/richard-prince/. ↑
  7. Richard Prince – About, Gagosian, available at https://gagosian.com/artists/richard-prince/. ↑
  8. See also Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). ↑
  9. Blake Brittain, Artist Richard Prince to Pay Photographers in Copyright Fight, Reuters (Jan. 26, 2024), available at https://www.reuters.com/legal/litigation/artist-richard-prince-pay-photographers-copyright-fight-2024-01-26/. ↑
  10. Graham v. Prince, 1:15-cv-10160-SHS (S.D.N.Y. Jan. 24, 2024), available at https://casetext.com/case/graham-v-prince-10; Tessa Solomon, Court Releases ‘Final Judgement’ in Richard Prince and Galleries Copyright Cases, ArtNews (Jan. 26, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  11. Graham v. Prince, 1:15-cv-10160-SHS (S.D.N.Y. Jan. 24, 2024), available at https://casetext.com/case/graham-v-prince-10; Tessa Solomon, Court Releases ‘Final Judgement’ in Richard Prince and Galleries Copyright Cases, ArtNews (Jan. 26, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  12. Alex Greenberger, Part of Richard Prince Lawsuit Is Tossed Out, Giving Gagosian Gallery a Small Win, ArtNews (Sep. 14, 2023), available athttps://www.artnews.com/art-news/news/richard-prince-lawsuit-donald-graham-gagosian-claim-tossed-1234679600. ↑
  13. Graham v. Prince, 15-CV-10160 (SHS) (S.D.N.Y. Sep. 11, 2023), available at https://www.nysd.uscourts.gov/sites/default/files/2023-09/15cv10160%20Opinion%20and%20Order%20sept%2011%202023.pdf. ↑
  14. McNatt v. Prince, 1:16-cv-08896-SHS (S.D.N.Y. Jan. 24, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  15. Tessa Solomon, Court Releases ‘Final Judgement’ in Richard Prince and Galleries Copyright Cases, ArtNews (Jan. 26, 2024), available at https://www.artnews.com/art-news/news/judge-rules-against-richard-prince-and-galleries-in-closely-watched-copyright-lawsuits-1234694318/. ↑
  16. Sarah Cascone, A Judge Has Greenlit Two Lawsuits Against Appropriation Artist Richard Prince From Photographers Who Say He Stole Their Work, Artnet (May 15, 2023), available at https://news.artnet.com/art-world/richard-prince-instagram-fair-use-lawsuit-to-proceed-2301826#:~:text=In%20his%20defense%2C%20Prince’s%20lawyers,and%20result%20in%20%E2%80%9Cdramatically%20different. ↑
  17. 17 U.S. C. § 107 (2012), available at https://www.law.cornell.edu/uscode/text/17/107. ↑
  18. 17 U.S.C. § 107 (2012), available at https://www.copyright.gov/fair-use/; Justin Ross, Copyright Cases Visual Artists Should Know: Part 3, Fair Use, Copyright Alliance (Nov. 30, 2023), available at https://copyrightalliance.org/copyright-cases-visual-artists-fair-use/. ↑
  19. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). ↑
  20. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). ↑
  21. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). ↑
  22. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). ↑
  23. Richard Stim, Measuring Fair Use: The Four Factors, Stanford Libraries (2019), available at https://fairuse.stanford.edu/overview/fair-use/four-factors/. ↑
  24. Blake Brittain, Artist Richard Prince to Pay Photographers in Copyright Fight, Reuters (Jan. 26, 2024), available at https://www.reuters.com/legal/litigation/artist-richard-prince-pay-photographers-copyright-fight-2024-01-26/. ↑
  25. Blake Brittain, Artist Richard Prince to Pay Photographers in Copyright Fight, Reuters (Jan. 26, 2024), available at https://www.reuters.com/legal/litigation/artist-richard-prince-pay-photographers-copyright-fight-2024-01-26/. ↑
  26. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (598 U.S. ___, 2023). ↑
  27. Franklin Graves, Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling, IPWatchdog (Jan. 29, 2024), available at https://ipwatchdog.com/2024/01/29/richard-prince-settles-dodging-post-warhol-fair-use-ruling/id=172482/#. ↑
  28. Franklin Graves, Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling, IPWatchdog (Jan. 29, 2024), available at https://ipwatchdog.com/2024/01/29/richard-prince-settles-dodging-post-warhol-fair-use-ruling/id=172482/#. ↑
  29. Graham v. Prince, 1:15-cv-10160-SHS (S.D.N.Y. Jan. 24, 2024), available at https://casetext.com/case/graham-v-prince-10; McNatt v. Prince, 1:16-cv-08896-SHS (S.D.N.Y. Jan. 24, 2024), available at https://casetext.com/case/mcnatt-v-prince-3. ↑
  30. Matt Stevens, Richard Prince to Pay Photographers Who Sued Over Copyright, New York Times (Jan. 26, 2024), available at https://www.nytimes.com/2024/01/26/arts/design/richard-prince-copyright-lawsuit.html. ↑
  31. Daniel Grant, Richard Prince Ordered to Pay Damages to Photographers in Copyright Infringement Lawsuits Over Instagram Portraits, The Art Newspaper (Jan. 26, 2024), available at https://www.theartnewspaper.com/2024/01/26/judge-rules-against-richard-prince-copyright-infringement-instagram-portraits. ↑
  32. Graham v. Prince, 1:15-cv-10160-SHS (S.D.N.Y. Jan. 24, 2024), available at https://casetext.com/case/graham-v-prince-10. ↑
  33. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (598 U.S. ___, 2023);Clara Casan, Case Review: Warhol v. Goldsmith, Center for Art Law (Dec. 5, 2018), available at https://itsartlaw.org/2018/12/05/case-review-warhol-v-goldsmith/. ↑
  34. Franklin Graves, Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling, IPWatchdog (Jan. 29, 2024), available at https://ipwatchdog.com/2024/01/29/richard-prince-settles-dodging-post-warhol-fair-use-ruling/id=172482/#; Matt Stevens, Richard Prince to Pay Photographers Who Sued Over Copyright, New York Times (Jan. 26, 2024), available at https://www.nytimes.com/2024/01/26/arts/design/richard-prince-copyright-lawsuit.html. ↑
  35. Matt Stevens, Richard Prince to Pay Photographers Who Sued Over Copyright, New York Times (Jan. 26, 2024), available at https://www.nytimes.com/2024/01/26/arts/design/richard-prince-copyright-lawsuit.html. ↑
  36. Franklin Graves, Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling, IPWatchdog (Jan. 29, 2024), available at https://ipwatchdog.com/2024/01/29/richard-prince-settles-dodging-post-warhol-fair-use-ruling/id=172482/#. ↑
  37. Franklin Graves, Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling, IPWatchdog (Jan. 29, 2024), available at https://ipwatchdog.com/2024/01/29/richard-prince-settles-dodging-post-warhol-fair-use-ruling/id=172482/#. ↑
  38. Richard Prince – Exhibitions, Gagosian, available at https://gagosian.com/artists/richard-prince/. ↑
  39. Carl Swanson, Is Richard Prince the Andy Warhol of Instagram?, Vulture (Apr. 18, 2016), available at https://www.vulture.com/2016/04/richard-prince-the-andy-warhol-of-instagram.html. ↑

 

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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