Has appropriation artist and agent provocateur Richard Prince finally crossed the line between fair use and copyright infringement?

One artist is prepared to fight tooth and nail to prove he has. Outraged by Prince’s unauthorised use of his work, photographer Donald Graham filed a complaint against Prince, Gagosian Gallery who represents him and Larry Gagosian, the gallery’s owner,  in New York federal court last month (30 December 2015).

The complaint marks an escalation in tensions since February last year, when we reported that Graham sent cease and desist letters to Gagosian Gallery claiming Prince illegally reproduced his photograph ‘Rastafarian Smoking a Joint, Jamaica’. Prince’s work is based on an Instagram post of Graham’s photograph to which Prince added his own comments before printing the complete image on a large canvas. It was displayed as part of Prince’s ‘New Portraits’ exhibit at Gagosian in 2014 alongside works which fetched up to US$90,000 each (£61,268).

This is not the first time Prince has faced legal action from another artist alleging copyright infringement. Graham’s complaint follows a similar action brought by photographer Patrick Cariou, who sued Prince for copyright infringement in 2011. The lower court held in Carious’s favour but the decision was reversed by the appellate court, which held Prince lawfully reproduced his work according to the fair use principle. Now that Graham has filed suit, legal commentators are debating whether the “#PrinceofAppropriation”, will once again untangle himself from the copyright web.

The Art Newspaper speculates that Prince may not be so lucky this time. The Cariou judgment focussed heavily on the importance of a side-by-side comparison of the original, protected work and the new work. It is suggested that Prince’s ‘New Portrait’ work may not be sufficiently different to constitute fair use of Graham’s photograph. Prince added colour to Cariou’s black and white photographs, enlarged their size and introduced elements such as guitars into the finished work. In contrast, he only slightly modified Graham’s work, cropping the top and bottom and incorporating design elements of the Instagram graphic user interface while maintaining largely the same dimensions.

The Cariou judgment also considered the effect of Prince’s work on Cariou’s market and the difference between their audiences. Whereas Prince’s work commanded millions of dollars, Cariou earned just over US$8,000 (£5,448) in royalties and refrained from heavily marketing himself. On the contrary, Graham’s work is much more visible. He has exhibited at New York’s Metropolitan Museum of Art, is represented by Paris’ A. Galerie and has been published in Vogue.

If this isn’t enough to sway the court in Graham’s favour, a lawyer from US firm Sullivan & Worcester LLP  has suggested he might possibly be able to rely on Instagram’s Terms of Use as an intended third party beneficiary. They state that Instagram users will ‘not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Instagram Content’.