That selfie stick might actually be a wise investment – after all, your next Instagram post could be worth thousands.

US artist Richard Prince’s latest exhibition, ‘New Portraits’, is a series of printed screenshots of other people’s Instagram photos. The going price for each piece? A cool US$90,000 (roughly A$115,000).

The amount the original Instagram posters will get? $0.

Prince didn’t ask permission from, or even tell, the original posters that he would be using their photos, which might set off alarm bells for some (copyright, anyone?). However, Prince doesn’t seem too concerned, even going as far as to retweet some of his more vocal detractors.

After all, this is not Prince’s first brush with the law – he’s done this more than once before. Most recently, Prince was embroiled in a similar copyright dispute over his appropriation of someone else’s photographs in his art. The case of Cariou v Prince was heard in 2013 before the U.S. Second Circuit Court of Appeals, which held that Prince’s use of the photos constituted ‘fair use’ and was therefore permissible under US copyright law.

The court found that Prince had made alterations to the photos, including painting and collaging, which were significant enough to render them “transformative” from the original works. Notably, some of his artworks with lesser alterations were sent back to a lower court for a decision (though the case was ultimately settled). Perhaps emboldened by this decision, Prince has moved on to a whole new form of appropriation.

A tale of two jurisdictions

Although he was successful in 2013, Prince may be viewing the current situation through sepia-filtered glasses. Things might turn out differently if any of the Insta-artists were to pursue Prince after this most recent incident – Prince has not altered the Instagram posts at all, besides replacing the comments at the bottom with his own remarks (complete with emojis). Talk about #nofilter.

As a quick reminder, under US law ‘fair use’ is a broad defence to copyright infringement. Courts weigh up the purpose and character of the use, the nature of the copyrighted work, the amount of it used and the effect of the use on the work’s potential market value.

Prince would certainly have to be a lot more creative in his arguments if a copyright infringement claim was brought in Australia. While the introduction of a “fair use” defence in Australia is still under consideration by the Government, under our existing legislation, the ‘fair dealing’ exception to copyright infringement requires the use to fall under one of the following defined categories:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news; or
  • obtaining professional legal advice.

Prince could possibly argue his artworks fall under one of the categories as a form of criticism or even a parody of the original works. We’ve reported on examples of this in the past – take a look at our thoughts on Michael Moore’s use of Mickey Mouse likenesses and Robin Thicke’s song Blurred Lines. Some commentators have also suggested that Prince’s use of the photos is a form of social commentary, which is another argument Prince could run in his defence.

Regardless of the arguments Prince might run, an Australian court would consider whether his use of the photographs was ‘fair’. This would involve looking at how much of the work has been taken, how much Prince has added to the work, and whether using that work was for a rival commercial purpose. Given he has made (arguably) minor additions to the photos, and has made a lot of money selling those photos without the owners’ permission, Prince might be feeling pretty #blessed that any potential legal proceedings would not take place in Australia.

Things could be worse…

Not only is Prince’s copying likely to amount to copyright infringement under Australian copyright law, he could also face a claim for moral rights infringement. In addition to copyright protection, a person has a statutory ‘moral’ right under the Australian Copyright Act to be attributed as the author of their work. This attribution must be a ‘reasonable form of identification’ and ‘clear and reasonably prominent’. Prince left the Instagram identities of the original posters intact on his artworks, which might be considered sufficient to satisfy the requirements of the right. However, it gets a bit tricker where the original poster was not the one taking the picture. In one of the shots, Australian photographer Peter Coulson’s credit was in the comments – which Prince removed.

It seems we’re not the only ones who have taken note of this story, as reports state that several US law firms have been in contact with the people who originally posted the photos. One of those original Instagram posters has said that she has no plans to sue, but Coulson has publicly stated he is considering legal action. Whether or not the others will follow suit is yet to be seen. Nonetheless, the whole situation is enough to give pause before posting another #nomakeup selfie – next thing you know, it could be hanging in a New York gallery.

Click here to view image.

doedeere’s Instagram response to Prince’s use of her picture in his exhibition.