Only Affair That Counts Is… Fair Use?

Andy wrote a piece agone on this weblog virtually Richard Prince ‘repurposing’ 1 time to a greater extent than photographs taken past times 3rd parties to create this fourth dimension fine art presented inwards his New Portraits exhibition, too a rather lucrative fine art that is, both for him too for the gallery representing him.

Now, lensman Donald Graham has filed a copyright infringement adjust against Prince, the Gagosian Gallery, too its possessor Larry Gagosian (Thank you lot Mark Jaffe for posting the complaint!) Graham claims that Prince used the “Rastafarian Smoking a Joint” photograph without permission inwards the New Portraits exhibition. Prince presented inkjet prints on canvases of images he had flora on Instagram, consummate amongst his ain comments equally @richardprince4nd. This did non fare good amongst several authors of the photographs, but too then far Donald Graham is the only 1 who has taken legal action.

It is non the laid out fourth dimension that Richard Prince is been sued for copyright infringement. Patrick Cariou, the writer of the Yes Rasta photography book, sued Prince later he had used only about of the Yes Rasta photographs to create his Canal Zone series, equally good presented at the Gagosian Gallery. The Second Circuit found this utilisation to last fair. Just similar Cariou, Graham had traveled to Jamaica too taken dark too white pictures of Rastafarians later gaining their trust. Does that insure that a courtroom volition detect Prince’s utilisation of Graham’s piece of occupation to last fair?

This Time, It May Not Be Fair Use

Fair utilisation is a defence to copyright infringement, but it is non fool-proof or automatic. Instead, judges utilisation 4 non-exclusives factors to determine if a detail utilisation of a piece of occupation protected past times copyright is fair: (1) piece of occupation too grapheme of the use, (2) nature of the copyrighted work, (3) amount too substantiality of the part taken, too (4) trial of the utilisation on the potential market.

Is Fair Use Once More Coming to Town? 

The minute too the 3rd constituent are probable to favor Graham, equally the piece of occupation reproduced is artistic, too has been reproduced inwards its entirety. Therefore, the laid out too the 4th constituent volition in all likelihood determine whether the utilisation is fair or not.

Graham had non posted himself a reproduction of his piece of occupation on Instagram, but a 3rd political party did, without Graham’s authorization. Under the post, Prince added the comment ““Canal Zinian da lam jam”, which may allude to his Canal Zone series, deemed to last fair use, too printed the page featuring the Graham photograph too his comments.

In Cariou v. Prince, the Second Circuit noted that “Prince altered [the Cariou] photographs significantly” (at 699). Adding a nonsensical comment nether a photograph, fifty-fifty if 1 chooses to depict it equally poetry, is non a pregnant change of the master copy work. This request is probable to last debated past times the parties, equally the Supreme Court stared inwards Campbell v. Acuff-Rose Music, when explaining the laid out fair utilisation factor, that “the to a greater extent than transformative the novel work, the less volition last the significance of other factors, similar commercialism, that weigh against a finding of fair use" (at 579).

In Cariou, the Second Circuit explained:

“These twenty-five of Prince's artworks manifest an exclusively dissimilar aesthetic from Cariou's photographs. Where Cariou's serene too deliberately composed portraits too landscape photographs depict the natural beauty of Rastafarians too their surrounding environs, Prince's unsmooth too jarring works, on the other hand, are hectic too provocative.”

In our case, 1 would last at hurting to depict Prince’s utilisation of Graham’s photography equally beingness “hectic too provocative. “ It may last considered a provocation, but this does nonetheless non brand the piece of occupation “provocative” for fair utilisation purposes.

Prince knows how to provoke: he posted a comment virtually the Graham adjust on Twitter: “U desire fame? Take mine. Only matter that counts is adept art. All the everything else is bullshit.” Interestingly, fair utilisation protects fine art whether it is adept or not, without the judges having to draw organisation themselves virtually whether fair utilisation is adept fine art or not, or fifty-fifty if it is fine art at all, or whether the writer of the piece of occupation is famous or non .

As for the 4th factor, the trial on the utilisation on the market, Graham does license his work, including the piece of occupation at stake, which was non the illustration inwards Cariou, too and then Prince’s utilisation may last deemed to create got an trial on the market.

A Lucrative Business, Thanks to Copyright

Graham posted on Instagram a persuasion of the New Portraits exhibition, including the impress reproducing his ain work, too added the hashtag #PrinceofAppropriation. The electrical load argues that Prince “has achieved notoriety inwards the “appropriation art” manufacture for his blatant disregard of copyright law” (at 23).

All the prints forming the New Portraits exhibition create got been sold. The Gagosian Gallery has published a catalog of the exhibition, and, according to the Complaint (at 35) “a gigantic photograph of the Exhibition prominently featuring the Infringing Work on a billboard at 50th Street too West Side Highway inwards New York City for several months, until at to the lowest degree July 2015.”

As noted inwards the electrical load (at 28), the Gagosian Gallery is aware that copyright constabulary prevents a 3rd political party to reproduce its inventory without permission (“All images are land of report to copyright. Gallery blessing must last granted prior to reproduction.” Therefore, Graham himself would create got to inquire permission to reproduce the unauthorized reproduction of this piece of occupation past times Prince reproducing the master copy unauthorized postal service on Instagram past times a 3rd political party (dizzy yet?).

This illustration is on the scout listing of every IP attorney inwards the US. Happy New Year!

Image is courtesy of Flickr user jpmueller99 nether a CC BY 2.0 license.