Judge Rules Against Richard Prince and Galleries in Closely-Watched Copyright Lawsuits

A New York judge has ruled against Richard Prince and his galleries, Gagosian and Blum & Poe, in two copyright lawsuits brought by photographers whose images were used without permission by Prince in his “New Portraits” series. The rulings end years-long litigation over whether Prince’s series, consisting of Instagram screenshots Prince reproduced on canvas and paired with his own commentary, exceeded the boundaries of copyright protections. 

Per documents filed yesterday in the Southern District of New York, in the case of Eric Mcnatt v. Richard Prince and Blum & Poe, United States District Judge Sidney H. Stein judge ruled that the defendants are barred from “reproducing, modifying, preparing derivative works from, displaying, selling, offering to sell, or otherwise distributing” the photograph Kim Gordon 1, the Instagram post in which Prince featured Kim Gordon 1, or including the artwork in any book based on the series. Mcnatt, the original photographer, has also been awarded an amount “equal to five times the sales  price” for Prince’s artwork sold by Blum & Poe, plus additional costs “incurred by” Mcnatt “as agreed-upon by the parties.”

McNatt brought the suit against Prince in 2020, after discovering Prince’s appropriation of his portrait of Kim Gordon, co-founder of art rock band Sonic Youth. McNatt’s image was commissioned for Paper Magazine in 2014.

Prince titled his artwork Portrait of Kim Gordon, and added the comment “Kool Thang You Make My Heart Sang You Make Everythang Groovy,” a reference to the 1960s song “Wild Thing” and the 1990 Sonic Youth song “Kool Thing,” sung by Gordon. The nearly 5-foot-tall canvas was exhibited at Blum & Poe’s Tokyo Gallery from April 2015 through May of that year. 

Also filed today was the ruling in Donald Graham v. Richard Prince, Gagosian Inc., and Lawrence Gagosian. The lawsuit concerns the photograph Rastafarian Smoking a Joint, originally taken by Graham and later reproduced by Prince for his first showing of “New Portraits” in an exhibition at Gagosian’s Madison Avenue gallery in 2014. Prince’s artwork, titled Portrait of Rastajay92, was later included in a companion catalog to the exhibition and featured on a billboard promoting “New Portraits” in New York City. Graham filed a cease-and-desist order against Prince, followed by a lawsuit in 2015.

US District Judge Stein ruled that Portrait of Rastajay92 was bound by the same restrictions as Kim Gordon 1: no future reproductions, modifications, distribution, promotions, or sales. Additionally, Graham, like Mcnatt, was awarded expenses amounting to five times its sale price and costs incurred.

Prince and his parties had been attempting for years to have both lawsuits dismissed. In 2017, Stein refused Prince’s appeal, writing in a prior ruling 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.” 

Prince, who shot to fame for presenting altered versions of the work of other artists, has argued that his practice is protected 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. 

Asked about the appropriation controversy in 2016, Prince told Vulture: “I’m not going to change, I’m not going to ask for permission, I’m not going to do it.”

In an earlier, unsuccessful lawsuit, French photographer Patrick Cariou accused Prince of copyright infringement after he learned that Prince’s “Canal Zone” series incorporated photographs from Cariou’s 2000 book, Yes, Rasta. Cariou’s case, which bounced between lower and higher courts for years, was eventually determined by whether a “reasonable observer” would find Prince’s use of the source material sufficiently transformative, defined by the court as imbuing a “new expression, meaning, or message.” 

In 2013, New York’s Second Circuit made a landmark ruling that Prince had not exceeded the protection of fair use.

“What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work,” Judge Barrington Parker wrote for the majority. The precedent set by the case became a touchstone for similar copyright lawsuits brought by artists against powerful industry figures.

In Donald Graham’s original complaint, he accused Prince’ modifications to his photograph of being insufficiently transformative, with only “minor cropping of the bottom and top portions” that left most of the source image “fully in tact,” and “framing the Copyrighted Photograph with elements of the Instagram graphic user interface” such as a line of text Prince wrote that read “richardprince4 Canal Zinian da lam jam”.

Blum & Poe and Gagosian did not immediately respond to an ARTnews request for comment.