by Anna Zabotina
In the age of ubiquitous public sharing on social platforms such as Facebook (1.44 billion users) and Instagram (300 million users) do copyright and privacy laws still exist? The most recent reminder of this unanswered question was given courtesy of the infamous appropriation artist, Richard Prince (“Prince”). As an art statement, the artist took various models’ Instagram photos, edited the captions, and sold each for $90,000.00 at a public art show. All of this was done without any notice to the owners of these images. Prince’s latest artistic endeavors, and the social media response that followed, highlight the difficulty of delineating and applying the fair use standard in the social media context where sharing is not only a social, but a moral, norm.
Although Prince’s Instagram photos have not yet resulted in any formal action, he is no stranger to litigation due to his controversial appropriation signature style employed since the 1970’s. Art of Theft? Famous Artist Sells Instagram Shots for $100K, Fortune (Mat 26, 2015 8:14 AM).
A French artist named, “Cariou,” had previously filed a lawsuit against Prince for using his art work. The trial court found that Prince’s appropriation method in that context did not constitute fair use. Cariou v. Prince, 784 F.Supp. 2d 337 (S.D.N.Y. 2011). The Court of Appeals, however, reversed that ruling as to most of the photos, stating that they were substantially transformed from the originals. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). The Cariou images were taken from an accredited artist’s book of photographs, Yes Rasta, and were placed into a collage with differing graffiti additions, or cut outs, by Prince. Cariou, 714 F.3d 694 (2d Cir. 2013). The Cariou Court of Appeals reasoned that the Yes Rasta photos were of nature and conveyed a peaceful expression, whereas Prince’s interpretation was jarring and gothic in character. Cariou, 714 F.3d 694 (2d Cir. 2013). The Court, however, did not define the parameters of what constitutes fair use in appropriation cases for the remaining five photos prior to the parties reaching a settlement. Boucher, Brian. Landmark Copyright Lawsuit Cariou v. Prince is Settled, Art in America (Mar. 18, 2015).
Fair use is the exception to an exclusive ownership right granted by copyright law to the author of creative work. Fair use balances between protection of original works and the ability of others to create socially enriching material utilizing those same works. Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir.1998). Fair use considerations include: (1) the purpose and character of the transformative use; (2) the nature of the copyrighted work; (3) the substantiality of the amount of the original work used; and (4) the effect of the use on the market value for the original. 17 U.S.C.S. § 107. For example, a court might consider it fair use for a book reviewer to use quotes from an original work in order to illustrate or substantiate a point. Folsom v. Marsh, 9 F.Cas 342 (MA. 1841).
A key aspect of fair use is how transformative is the use claimed to be “fair.” The transformative standard, which was the focus of the Cariou cases, analyzes whether the new work contributes a further purpose or different character, altering the first with new expression, meaning, or message. Warner Bros. Entm't Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008). For example, copyrighted photos in a collage painting were a valid transformative use because they conveyed the artist’s relationship with objects as opposed to a pure subject matter description of the original. Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006); see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (holding that copyrighted posters used in a documentary about a band were transformative use because the purpose was to document rather than promote).
Currently Prince is getting a lot of public backlash for his Instagram works with commentators lashing out at his “lack of ethics and creativity.” Brenke, Rachel. An Open Letter to Richard Prince from Photographers Everywhere, TheLawTog, (May 29, 2015). Prince’s work seems to not only ignore, but emphasize, the lack of transformative use from the original works of authorship. More interestingly, however, Prince’s lack of transformation appears to highlight the vulnerability of social media and what constitutes an original work, and its author.
Even though the Instagram images were not altered but for their captions, one might argue that Prince’s appropriation of the images is a social commentary on the lack of privacy in the internet age. In other words his contribution presumably adds a substantial social commentary to the original works. Is Prince’s lack of alteration of social media content therefore the “transformation” that is sought in appropriation cases, and is the public wrong in name-calling someone who is purely pointing out the holes in modern privacy and copyright laws?
Prince documented his portrait finding and making process on his website. He spoke of the complete ease with which one can follow people they know, and those they don’t and stated that, “the new portraits were in that gray area. Undefined. In-between. They had no history, no past, no-name. A life of their own.” Prince, Richard. http://www.richardprince.com/birdtalk/ (Nov. 18, 2014). His portrayal of content on Instagram seems to be that no one owns content as evidenced by him saying “what’s yours is mine,” referring to social media content (Nov. 18, 2014).
Right of publicity might be another avenue sought by potential plaintiffs in such circumstances. The right of publicity protects well-known persons from misrepresentation of their identities. Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013). Under New York law the right of publicity requires: (1) the use of an image; (2) of a living person; (3) for commercial, trade, or advertising purposes; (4) without consent. Baumblatt v. Battalia, 134 A.D.2d 226 (NY. App. Div., 1987). The courts have narrowed the definition of a living person to those readily recognizable by the public. Portanova v New York News, Inc., 80 A.D.2d 820 (N.Y. App. Div. 1981). Although Instagram users are not famous, some may be considered social media celebrities. For example, @doedeere, one of the people whose portrait was used by Prince, has 336,000 followers. Nevertheless, showing damages would be difficult without establishing the public scope of a social media celebrity outside of Instagram.
Even though an Instagram user might get moral satisfaction from filing a copyright lawsuit against Prince, it is unlikely that any damages could be effectively established in a copyright or privacy cause of action. For the same reasons, there is a dearth of cases illustrating what happens in similar circumstances. The only available choice seems to be not to post anything on social media sites; but that would contradict social media’s raison d’être. If Prince’s social commentary is to highlight lack of privacy, and the lack of available remedies to address it, then he has perhaps made a point.