A Manhattan judge has refused to dismiss two longstanding copyright lawsuits against artist Richard Prince for his Instagram source New Portraits series, a suite of images appropriated from users on the platform and printed on canvas. The decision, first reported by Courthouse Newsis part of a larger shift in regulatory control in the area of digital copyright, from non-fungible tokens in the Legislative Far West of artificial intelligence.
U.S. District Judge Sidney Stein signed a consolidated decision May 12 after Prince sought summary judgment in two New York cases brought by photographers whose original images appeared in the series.
THE first trialbrought in 2016 by Donald Graham, accusing Prince of copyright infringement on his 1998 photograph, Rasta smoking a joint. The second costume, also filed in 2016by Eric McNatt, relates to Prince’s use of his portrait of Sonic Youth co-founder Kim Gordon, originally commissioned for Paper magazine in 2014. Prince exhibited Gordon’s Appropriate Portrait at Blume & Poe Gallery in Tokyo in the spring of 2015.
A photo by Donald Graham (left) and matching artwork by Richard Prince’s New Portraits series (right) Court documents
The two photographers’ claims recall an intellectual property lawsuit brought against Prince by photographer Patrick Cariou, whose documentation of Jamaica’s mountains and remote villages was used by the artist as material for a series of visual overlays in 2007. In 2013, New York’s Second Circuit ruled in favor of Prince, calling his use of Cariou footage a “transformative use.”
Judge Stein, however, claimed that Prince had failed to sufficiently transform his New Portraits to match this precedent.
“Ultimately, this Court finds that Prince’s amendments merely ‘modified[ied] the original[s] without being transformative,” Judge Stein writing. “Prince did not use the plaintiffs’ photographs as raw material to create a collage nor did he attempt to obscure the images. A reasonable observer would likely identify Prince’s edits as (1) the addition of the Instagram frame and ( 2) the presentation of its own comments These amendments certainly do not begin to approach the amendments considered transformative in law in [the] Cariou and Blanch [cases].”
In his motion to dismiss the lawsuit, Prince argued that “in the context of art, the transformation of a work must be assessed through the lens of the person who has a general interest and appreciation for…the arts” . Judge Stein ultimately sided with the plaintiffs’ assertion that the work failed to achieve the satirical or social commentary goals required to legally qualify for fair or transformative use.
The judge’s decision means the photographers’ lawsuit against Prince will continue.
