Richard Prince – an update

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We have previously reported on the artist Richard Prince and the disputes surrounding his controversial works. In particular, we reported that a photographer, Donald Graham, had filed a complaint against Prince for copyright infringement by creating and exhibiting an Instagram-style screenprint based very closely on an original photograph taken by Graham entitled “Rastafarian Smoking a Joint, Jamaica”.

Graham was sufficiently enraged by what he perceived as the unlawful appropriation of his copyright that he posted his own comment on Instagram: “How to credit a work. ‘Rastafarian Smoking a Joint, Jamaica” © (1997) Donald Graham. #PrinceofAppropriation”.

It is unlikely that Prince was unduly ruffled by Graham’s barb, having thoroughly immersed himself in the choppy waters of US copyright in recent years with no resulting damage to his reputation; indeed, the reverse is true, Prince’s works are enormously popular.

In response Prince is relying on the argument that he has advanced successfully in the US courts before (and which we have summarised elsewhere), namely that his work is “transformative” and thus falls within the US “fair use” exception to copyright infringement. Prince is arguing that Graham is, in essence, seeking to re-litigate something which the courts have already adjudicated (albeit in respect of a photographer other than Graham). He also maintains that his – lawful – appropriation of Graham’s work will have no impact on the marketability of Graham’s work, something which is also relevant to the application of the fair use exception.

It is virtually certain that there will be further updates in this or related cases as Prince continues to test the boundaries of the US fair use exception.

Instagram is very much in the copyright news at the moment in the United States. It is reported that Groupon is facing a class action lawsuit over claims that it has allegedly taken users’ Instagram photographs without their consent and used them in its advertising; for example, if it is advertising a deal at a particular hotel or restaurant it will use a picture of someone tagged at that hotel or restaurant. There are arguments around whether tagging a business or its location on Instagram gives the business an implied licence to repost but the scope of such a licence, if indeed one exists all, is unclear.