Ever since Richard Prince’s “New Portraits” project first made headlines, we’ve been following the story—and the copyright implications.  Now, two lawsuits that arose out of that controversial exhibition are headed for a summary judgment ruling. 
 
By way of background, famed artist Richard Prince is no stranger to litigation; over the years, he’s been sued by multiple plaintiffs whose art he has incorporated into his own works of “appropriation art.”  In fact, he was the defendant in the April 2013 Cariou v. Prince case, which resulted in an important Second Circuit opinion about the fair use defense to copyright infringement.
 
In the fall of 2014, Prince was back at it, with an exhibit at the Gagosian Gallery titled New Portraits (also shown at the Frieze Art Fair the following spring).  More detail can be found in our previous blog post, here, but in short, the Prince works were based on his exploration of the photography-based social network Instagram; Prince chose photographs posted by other Instagram users, slightly manipulated the images and accompanying text so that only a few comments are visible, and added his own final comment (his comments are brief, often cryptic, and sometimes accompanied by emojis).  He would then take screen shots, which he printed on large-scale canvases.  None of the original photographers were notified of his use of their work.  Critical responses were varied, but on the legal front, some of the Instagram users whose work was copied took action.  
 
Two federal cases are now underway, by two different plaintiffs whose photos were among those Prince appropriated.  The first, which we outlined here, is by photographer Donald Graham, who created an original photo portrait of a Rastafarian, which Prince then used in New Portraits.  The second, discussed here, is by photographer Eric McNatt, who took a photo of rock star Kim Gordon in connection with a magazine interview; that photo then became the basis for another New Portrait by Prince.  The defendants in Graham’s action include not just Prince, but the Gagosian Gallery and its owner.  In the McNatt action, the defendants are Prince and gallerist Blum & Poe, which exhibited the work at issue and published it in a book.
 
In Graham’s case, the defendants filed a motion to dismiss, which the court denied last summer.  More detail can be found here, but in short, the New York court’s opinion ruled that the question of whether fair use protects Prince’s work should not be decided on a motion to dismiss.  The defendants had argued that the case was squarely governed by Cariou, which found that most of Prince’s works from a different project constituted fair use.  But the district court noted that Cariou decision came at the summary judgment phase, that there were differences between this case and Cariou, and that likewise, discovery was needed in order to properly weigh the application of the fair use defense to Graham’s case.  The court examined Second Circuit precedent regarding the issue of whether a work is “transformative” (an important consideration in fair use analysis), but declined to hold that the New Portrait at issue was transformative as a matter of law at that early phase of the case.  The court indicated that discovery on topics such as the purpose of Prince’s works, and the market for each artist’s work—was needed.  Following the Graham decision denying the defendants’ motion to dismiss, Prince’s attorneys opted to withdraw a similar motion to dismiss in the McNatt case.
 
The parties in both cases have now completed discovery, and the next checkpoint looms; the court is now considering the question of whether the case should be decided on summary judgment, or alternatively, whether a trial is needed.  The briefs revisit the four statutory fair use factors (see 17 U.S.C. § 107, here), which the court examined in its decision on the motion to dismiss; now, the parties present their respective fair use arguments, bolstered this time by facts that emerged during discovery. 
 
The defendants’ briefs, speaking generally, place emphasis on the first fair use factor—the “purpose and character” of Prince’s use of the plaintiffs’ respective original photographs.  The defendants emphasize that Prince’s works were intended to comment on the phenomenon of social media.  The plaintiffs, for their part, argue that that “purpose” is a post-hoc justification, citing parts of Prince’s deposition in which he was perhaps a bit more flippant and less articulate about his purpose in creating the New Portraits. 
 
Similarly, the defendants place weight on the fourth fair use factor, which examines the effect of Prince’s use upon the potential market for or value of the plaintiff’s original works.  Here, defendants urge that Prince has not usurped the market for the original works, on two bases.  First, they argue that the photographer literally doesn't have the right to exploit the photographs at issue because they don't have the proper releases from the respective models.  Second, it's argued that even putting that issue aside, Prince's appropriation hasn't harmed (and if anything, has helped) the photographers from a commercial perspective.  And with the benefit of discovery, defendants are able to put forward evidence about what kind of market there really is for these photographers' works, and then compare that to the unique, elite market for Prince works and the massive differential in the prices commanded by Prince versus these plaintiffs.  (Similar facts were relevant to the Cariou court as well.)  The plaintiffs, for their part, understandably downplay the importance of the fourth factor, but also argue that there are sufficient factual issues for trial on whether Prince’s New Portraits has done damage to their ability to profit from their own works, either through sales of prints or licensing fees.  It will be interesting to see how the court rules on these more economic arguments; indeed, placing some weight on such considerations wouldn't be entirely inconsistent with recent Second Circuit decisions like the TVEyes case, which arguably focused more on questions of market usurpation than on the transformativity of the use at issue there.
 
Finally, the parties spend some of their pages seeking to persuade the court about a specific concept embedded in the already-slippery question of transformativity.  Courts have stated, over the years, that the question of whether a use of a copyrighted work is “transformative” for purposes of fair use analysis is a question that should be examined by asking how a “reasonable observer” would perceive the use.  But the law is unclear about who this hypothetical reasonable observer might be.  In these New Portraits briefs, the defendants urge that the “reasonable observer” should be someone who has a general interest in and appreciation for art; they emphasize the free-speech concerns that underpin the fair use doctrine, and urge that the concept of transformativity must resist simple majority rule.  In contrast, the plaintiffs argue that the reasonable observer is simply a casual, ordinary lay observer with no particular knowledge of art.  This issue could turn out to be important, in that some of the fair use arguments at issue in this case require putting Prince’s uses at issue here in context, against the backdrop of Prince’s larger oeuvre and the long history of appropriation art.
 
Overall, this case demonstrates the continuing complexity of applying the fair use doctrine in the context of art, and particularly appropriation art.  We now await the district court’s take on the summary judgment briefs submitted in both of these cases, and will update this blog when a decision is issued.