On May 11, U.S. District Judge Sidney Stein declined to dismiss two copyright lawsuits against Richard Prince stemming from the artist’s 2014 “New Portraits” series, as originally reported in Courthouse News. Prince had sought summary judgment—a decision in the absence of a trial—in both cases on the grounds that the disputed works sufficiently transformed their source material and therefore did not infringe the copyright of the originals.
At issue is Prince’s use of screenshots from Instagram, which he printed onto canvas and attached with his own comments, all without permission from the original photographers whose work was featured. Donald Graham, whose 1998 photo Rasta smoking a joint appears in one of Prince’s works, originally filed against the artist in 2015. Photographer Eric McNatt sued Prince in 2016 for the latter’s use of a portrait of Kim Gordon of Sonic Youth, originally commissioned from McNatt by Paper magazine in 2014. Prince attempted the fair use defense and Stein in 2017 rejected in relation to Graham’s costume, noting that “the primary image in both works is the photograph itself” and asserting that “Prince has not materially altered the composition, presentation, scale, palette of colors and media originally used by Graham”.
The Graham and McNatt lawsuits, which can now proceed quickly, are similar to one filed against Prince by photographer Patrick Cariou in 2009. Cariou alleged that Prince took photos from his 2000 book.yes Rasta for the artist’s “Canal Zone” series. In 2013, Judge Barrington Parker of the Second Circuit Court in New York ruled that Prince’s treatment of the original images – which he had cropped, splattered with paint or covered with other images – altered them enough that the finished works do not infringe Cariou’s copyright. However, Stein’s decision last week came amid an altered landscape shaped by the proliferation of social media platforms.
“Portrait of Rastajay92 And Portrait of Kim Gordon make several alterations that are in the opinion of the Court both minimal and insufficient to warrant the conclusion that they result in a different aesthetic and character from the plaintiffs’ original photographs,” Stein wrote in his opinion. “The defendants’ attempt to portray the images as satire or parody fails, and Prince’s stated purpose in creating these portraits has been both inconsistent and of limited relevance in light of the similarities between original and secondary works.”
The court’s decision may affect the outcome of the another closely watched copyright casethis one involving a 1981 portrait of iconic rocker Prince taken by Lynn Goldsmith and appropriated by Andy Warhol in a 1984 serigraph. The Supreme Court is expected to rule on the matter this year.
