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Instagram, copyright and the fair use

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15/06/2015

In a sure sign that there are people in the world with more money than sense, Richard Prince, a US artist, already notorious for pushing the boundaries of US copyright law, is taking other people’s Instagram photographs without their permission, altering them slightly, and selling the works for sums rising to around US $100,000 a piece. Prince presents the photograph as a screenshot, adding an additional nonsensical final comment underneath the “likes”. He exhibited the works in a gallery in New York last autumn to a mixture of acclaim, bewilderment and disgust.

At least one of the subjects of the photograph has said that she didn’t know anything about the appropriation of her “selfie”, that Prince never approached her for permission, that she was surprised to learn that it had sold for US $90,000 and that she did not know the identity of the picture’s new owner. Apparently, she has no plans to sue for copyright infringement.

Copyright in a photograph vests in the photographer. As such, they have the right to control the distribution of the photographs. There is in US law an exception to the exclusive rights conferred on a copyright owner called the “fair use” exception, similar to the fair dealing exception in the UK. This permits the use of a copyright-protected work without the consent of the copyright holder provided the use is fair. The legislation states that fair use includes use for purposes such as criticism, comment, news reporting, teaching scholarship, or research, none of which really apply in this case. It will also be relevant to determine whether the use is for commercial or non-profit-making purposes; again, this would seem to count against Prince in this case.

However, in a previous case involving Prince, he was able to rely on the fair use doctrine [1]. In the best know photograph in that case, Prince had taken a photograph of a Rastafarian and painted over his eyes, nose and mouth and pasted a photograph of an electric guitar into his hands. The Second Circuit found for Prince on the basis that the work was “transformative”, and, as such, covered by the fair use exception. It contrasted the serenity of the original image with the jarring and provocative nature of the Prince image.

It has been suggested that Prince is deliberately being provocative, seeing how far he can push the fair use exception. It is, at the very least, strongly arguable that adding a fatuous comment to the bottom of a selfie is not transformative and that the fair use exception will not avail him of a defence to copyright infringement in the apparently unlikely event that a claim will be brought. For its part, Instagram is not planning to take action against Prince.

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[1] Cariou v. Prince,11-1197-cv (2d Cir. April 25, 2013)

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