Richard Prince Defends His Instagram Reappropriation Art: “IPhone is My Paintbrush” - Fordham Intellectual Property, Media & Entertainment Law Journal
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Richard Prince Defends His Instagram Reappropriation Art: “IPhone is My Paintbrush”

Richard Prince Defends His Instagram Reappropriation Art: “IPhone is My Paintbrush”

Richard Prince, one of the most famous appropriation artists, is continuing his battle in federal court over his photography series from the 2014 exhibition, “New Portrait.”1 In this controversial exhibition, Prince took screenshots of Instagram posts from both celebrities and non-celebrities, added a “comment,” reprinted them in a bigger size, and sold them for up to $100,000.2 Following the exhibition, photographers Donald Graham and Eric McNatt sued Prince for copyright infringement in 2015 and 2016 respectively.3

Fair use has been defined as “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.”4 In determining fair use, courts consider four factors: 1) the purpose and character of the use; 2) nature of the copyrighted work; 3) the amount of work used in relation to the whole; 4) effect on the market for the work.5 Prince is already well known for pushing the boundaries of fair use in art: in 2009, photographer Patrick Cariou sued Prince for taking Cariou’s photographs and making his own series of works.6 In 2013, the Second Circuit reversed a District Court decision and held that Prince’s works are “transformative” because he is commenting on the original photographs through his appropriation.7

Unsurprisingly, Prince claims that “New Portraits” are transformative as well. However, unlike his use of Cariou’s works, where he added colors and other images to the original works, Prince left the original Instagram posts virtually untouched.8 Last year, a District Court rejected Prince’s motion to dismiss Graham’s case because Prince used the entirety of the Graham’s photograph without “substantial aesthetic alterations.”9 The Court held that the artist needs “substantial evidentiary support” to prove that his work is transformative.10

Early this October, Prince filed summary judgment motions arguing that his works are an “ode to social media” and that not obscuring the original Instagram posts is “critical, not detrimental” to his fair use claim because “had he done anything to alter the post…his intent – in automatically replicating in the physical world the virtual world of social media – would go unseen.”11 Prince further claims that his iPhone is both his paintbrush and his studio.12

Several art luminaries have submitted documents in support of Prince’s motions. The director of the New Museum, Lisa Philips, says in court documents, “an image need not be altered to be transformed into a new work of art.”13 The curator of Walther Collection in New York and former deputy director of the International Center of Photography, Brian Wallis, says photographs convey meaning about individuals, but Prince’s works “refer to the way these portraits are already transformed by Instagram as a medium of communication.”14 Dealer Daniel Wolf also supported the artist saying the “meaning is not in the photograph; the meaning is in the Instagram.”15

Plaintiffs Graham and McNatt’s responses, which are due in early November, will also present arguments by eminent academics and experts in the art world. In a previously filed report, Nate Harrison, the chairman of media arts department at Tufts University’s School of the Museum of Fine Arts, says that a “reasonable observer would not derive ‘some intellectual transformation’” from Prince’s works because millions of people recontextualize imagery everyday through Internet memes.16 Another expert for the plaintiffs, June Besek, the executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, has voiced the concern that if adding comments and emojis create a new expression, copyright protection for any work on social media “would be significantly compromised.”17

The outcome of the case is difficult to predict as the “transformative” prong of fair use is – as are most interpretations in conceptual art – debatable and nebulous. The judge’s dismissal of the motion to dismiss, however, hints to how the judge might feel about the case: “To the extent that the court is able to evaluate the statutory fair use factors on the basis of the facts alleged in the complaint, the court concludes that each of them weighs against a finding that Prince’s ‘Untitled’ makes fair use of [Graham’s original work] ‘Rastafarian Smoking a Joint.’”18

  1. Krista L. Cox, Richard Prince: Thief, Appropriation Artist, Or Performance Artist?, Above The Law (Oct. 18, 2018), []

  2. Id.

  3. Adi Robertson, How to Use Instagram Like An Appropriation Artist, The Verge (Oct. 18, 2018, 2:17 PM), []

  4. Rich Stim, What is Fair Use?, Stanford Copyright and Fair Use (Mar. 24, 2017), []

  5. Cox, supra note 1.

  6. Brian Boucher, Landmark Copyright Lawsuit Cariou v. Prince Is Settled, Art In America (Mar. 18, 2014), []

  7. Cox, supra note 1.

  8. Id.

  9. Laura Gilbert, Richard Prince Defends Reuse of Other’s Photographs, The Art Newspaper (Oct. 10, 2018 1:38 PM), []

  10. Id.

  11. Bill Donahue, Instagram Art Show was Fair Use, Richard Prince Says, Law360 (Oct. 9th, 2018, 3:46 PM), []

  12. Robertson, supra note 3.

  13. Gilbert, supra note 9.

  14. Id.

  15. Id.

  16. Id.

  17. Id.

  18. Donahue, supra note 11.

Jane Lee

Jane H. Lee is a second-year J.D. candidate at Fordham University School of Law. She is a staff member of the Intellectual Property, Media & Entertainment Law Journal and an executive board member of the Fordham Art Law Society. Lee holds a B.A. in Art History from Columbia University.