Judge Rejects Richard Prince’s Fair Use Defense in Long-Running Legal Battle Over Instagram Series

Richard Prince’s yearslong legal woes over a controversial series of doctored Instagram screenshots continues after a federal judge in New York again rejected his fair use defense.

Last week, United States District Judge Sidney Stein ruled that Prince’s “New Portraits,” comprising enlarged Instagram screenshots reproduced on canvas and paired with his pithy commentary, “indeed tested the boundary between appropriation art and copyright infringement,” Courthouse News reported this past Friday. Prince faces two cases in the Southern District of New York brought by photographers whose original images were used without permission in “New Portraits.”

Prince first showed “Portraits” in an exhibition at Gagosian in New York in 2014. The backlash was swift: several people pictured in them raised objections to their images being reproduced without their consent, and at least five lawsuits were filed. The photographer Donald Graham, whose image Rastafarian Smoking a Joint was featured in the installation, filed a cease-and-desist order against Prince, followed by a lawsuit in 2015.

In 2017 Stein refused Prince’s request to throw out the lawsuit, writing that the “primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.”

Graham’s case follows a similar, but less successful, lawsuit filed against Prince by French photographer Patrick Cariou. In 2009 Cariou accused Prince of copyright infringement after the latter’s “Canal Zone” paintings incorporated photographs from Cariou’s 2000 book, Yes, Rasta.

Prince’s trail of litigation has been closely watched, given its potential to set a precedent for how the fair use doctrine is applied to social media. In the Cariou case, as with the current one, Prince argued that his practice is covered by fair use exceptions to federal copyright protections, which allow the limited appropriation of intellectual property for purposes such as scholarship, news reporting, and commentary. The Cariou case, which spent years going back and forth between lower and higher courts, came down to whether a “reasonable observer” would find Prince’s artworks use of the material to be sufficiently transformative, defined here as imbuing a “new expression, meaning, or message.” In 2013 the US Court of Appeals for the Second Circuit ruled in favor of the appropriation artist.

Notably, the fair use doctrine has also been leveraged by the Warhol Foundation, which defended Warhol’s use of photographer Lynn Goldsmith’s copyrighted image of the music legend Prince as the basis for a series of portraits. That case went before the Supreme Court in October but the justices have yet to release a ruling. It seems likely that the Warhol case too will come down to whether the judge determines that a “reasonable observer” would deem Warhol’s image transformative, defined here as carrying a “new expression, meaning, or message.”

But in a testament to the nebulous nature of this new realm of litigation, even that determination, now the standard in such cases, has faced criticism by those who ask what criteria constitutes a ”reasonable observer.” If judgment, ideally, is handled impartially, how does that reconcile with art criticism, a supremely subjective pursuit?

“In the American legal system there is no ‘impartial expert,’” Nicholas O’Donnell, an art lawyer and cochair of the Art, Cultural Property and Heritage Law Committee of the International Bar Association, told ARTnews amid the Warhol deliberation. “Each side introduces an expert and argues why his or her expert is the superior one.”