“Appropriation” artist Richard Prince, known for his controversial Instagram photo series, has been sued again on claims that he unlawfully reproduced a photographer’s copyrighted work.
Eric McNatt alleges in his complain that Prince copied McNatt’s portrait of Sonic Youth musician Kim Gordon and subsequently posted it on Instagram, later featuring a print-out of his Instagram post at a gallery show. Prince included the work as a part of his New Portraits collection, which consists of Prince’s reappropriations of Instagram photos taken by other people.
The New Portraits collection is not Prince’s first collection to face copyright controversy. In 2009 photographer Patrick Cariou sued Prince over his visual art work series Canal Zone, alleging that Prince unlawfully incorporated Cariou’s photographs. However, the Second Circuit held that Prince’s works were transformative and therefore constituted fair use. The court pointed out in particular that Prince’s works manifested “an entirely different aesthetic” from Cariou’s photographs.
As to McNatt’s complaint, Prince’s attorney commented that it “fundamentally misunderstands the case law on fair use”, suggesting that this dispute, too, is likely to boil down to the question of transformative use. Prince’s use of McNatt’s photograph has transformative aspects: his Instagram post and its print-out version contained the caption “Portrait of Kim Gordon”, a comment by Prince paraphrasing Sonic Youth lyrics, and another comment with music-related emojis. Whether these subtle tweaks constitute transformative use will likely depend on whether they create a work with “an entirely different aesthetic.”
Cariou v. Prince, 714 F.3d 694 (S.D.N.Y. 2013)
Complaint McNatt v. Prince et al., case number 1:16-cv-08896 (S.D.N.Y. 2016)
Josh Russel, “’Appropriation Artist’ Richard Prince Sued,” Entertainment Law Digest (November 22, 2016), http://www.entlawdigest.com/2016/11/22/4381.htm
Daniel Seagal, “Richard Prince Hit With Another IP Suit By Photographer,” Law360 (November 16, 2016), http://www.law360.com/articles/863433/richard-prince-hit-with-another-ip-suit-by-photographer
Marie-Andree Weiss, “Richard Prince May Offer the SDNY Another Chance to Define Transformative Use of a Work,” The 1709 Blog (November 23, 2016), http://the1709blog.blogspot.com/2016/11/richard-prince-may-offer-sdny-another.html