Richard Prince, the (in)famous appropriation artist—and not an infrequent subject of this blog—is once again in the news. This time, it’s not because he’s defending appropriating and repurposing other people’s work as his own, but rather the opposite: Prince, with more than a little ironic wit, recently declared his repurposed Instagram shot of Ivanka Trump to be “fake art,” stating, “[t]his is not my work. I did not make it” and returning the purchase price. In repurposing his own art, Prince may have gone a long way toward answering his critics by demonstrating the transformative power of repurposing a pre-existing work—but can he really disown his own work?
Whether Prince is really seeking to disavow his work or simply making a political statement, he is certainly not the first artist to disown work unquestionably made by the artist’s own hand. In 2015, Gerhard Richter declared that he would no longer acknowledge as his own a series of paintings executed between 1962 and 1968. While Richter’s decision was not a political act, both artists’ actions raise the question of whether an artist’s disavowal of earlier works potentially runs afoul of duties of care to galleries, agents, and patrons.
In 2014, Scottish painter Peter Doig was sued by Robert Fletcher, a Canadian corrections officer, after he disavowed a painting Fletcher sought to authenticate as Doig’s. Much to the consternation of the art world, District Court Judge Gary Feinerman of the Northern District of Illinois allowed the suit to go forward. The lawsuit, which alleged tortious interference, posited that Doig’s disavowal would render worthless a painting that Fletcher could otherwise have sold for millions. The lawsuit sought both damages and a declaration that the work was authentic. Doig won on the facts—his legal team was able to identify the real artist (a teenage inmate named Peter Doige who was incarcerated on LSD charges). Much of the criticism leveled at that case centered around the apparently inherent unfairness of forcing an artist to prove that a work is not his or her own. But would Doig have enjoyed the same public sympathy if he had disavowed the work not because he didn’t paint it, but because he regretted doing so? Had this been the underlying fact pattern, the district court may very well have ruled in Fletcher’s favor.
Whether Prince will be (or could be) sued for his disavowal of his portrait of Ms. Trump—which is further complicated by the free speech implications of his actions—remains to be seen. But it does raise an important question of whether an artist gets to decide whether a work is his or her own.