Richard Prince has had a busy year on the litigation front.

We’ve previously written about the copyright claims photographer Donald Graham filed last winter against Prince and the Gagosian Gallery over Prince’s use of Instagram images in his 2014-15 “New Portraits” exhibition.  A motion to dismiss that case on fair use grounds is currently pending.  See Graham v. Prince, No. 1:15-cv-10160-SHS (S.D.N.Y.).  As we’ve observed before, any ruling in that case is likely to involve an extensive examination of the Second Circuit’s 2013 decision in Cariou v. Prince, holding a large group of Prince works to be fair use, as well as the Second Circuit’s 2015 decision in the Google Books case, which also closely examined fair-use principles in the copyright context.

A second lawsuit arising out of “New Portraits” was also filed but later dismissed; the plaintiff apparently plans to refile in New York.  See Salazar v. Prince, No. 2:16-cv-04282- MWF-FFM (C.D. Cal.).  Prince also was sued over the summer in a case involving his use of a copyrighted image of famed musician Sid Vicious.  That case, too, has been dismissed, with the plaintiff expressing an intention to refile it in New York.  See Dennis Morris, LLC v. Prince, No: 2:16-cv-03924-RGK-PJW (C.D. Cal.).

Now, a new complaint filed in New York federal court focuses on Prince’s appropriation of a copyrighted photograph of rock star Kim Gordon in a work that became part of “New Portraits.”  See Docket No. 16-cv-08896 (S.D.N.Y.).  The plaintiff, professional photographer Eric McNatt, alleges that, in 2014, he traveled to Northampton, Massachusetts to photograph rock musician Kim Gordon (most famous as the lead singer of the band Sonic Youth).  His complaint details the effort and investment (in the form of time, equipment, supplies, and his skills) that went into creating the photographs taken at that shoot.  One of the photographs from the shoot was published (with McNatt’s permission) in Paper magazine and on the magazine’s Instagram account.  The photo also appeared in a handful of other places (including Vogue.com and McNatt’s own website and social media accounts), always with McNatt’s authorization.

In September 2014, however, Prince, without asking or crediting McNatt, reproduced the image on his own Instagram account, with the only changes being minor cropping and the addition of a short text caption and a handful of emojis that appeared below the image (which Prince created using the Instagram “comment” function).  Prince then took a screen shot of his Instagram post and had the screen shot printed in inkjet on canvas.  The physical printed canvas was displayed at the Tokyo gallery of Blum & Poe, and an image of it was published on the website of Ocula Limited, an art marketplace, and in various promotional materials and messages.  The image was also included in a published art book commemorating Prince’s “New Portraits” exhibition; the book, sold by Blum & Poe, bears the copyright notations “© 2016 Blum & Poe and Richard Prince” and “All artworks and images © the artist.”  Prince apparently eventually gave the printed canvas work to Kim Gordon herself (with whom he has collaborated on at least one other project); she posted a photo of herself holding the portrait and thanking Prince.

McNatt’s claims include, of course, copyright infringement against Prince (with respect to Prince’s Instagram post, the resulting portrait, and the exhibition book).  He also asserts infringement claims against two corporate entities affiliated with Blum & Poe (for their involvement in the exhibition and book), as well as Ocula Limited (for its display and promotion of the Prince canvas work on its website).  He alleges that all three defendants’ infringing actions were willful, an assertion which could increase the damages available to McNatt should he prevail.  (McNatt also registered his copyright in the photograph within three months of its first publication of the work, meaning he may also qualify for statutory damages and attorneys’ fees.  See 17 U.S.C. § 412.)  He further seeks a declaration that Prince’s use of his photograph does not qualify as fair use.

Like Graham (and Cariou before that), this litigation will likely focus heavily on whether Prince’s appropriation of the underlying works is protected by fair use.  See 17 U.S.C. § 107.  Thus, it’s not surprising that McNatt’s complaint, in places, reads like an opening brief on the issue of fair use.  McNatt’s complaint, like Graham’s, emphasizes the minimal alterations Prince made to his McNatt’s photograph, and argues that the infringing works by Prince do not “manifest a different aesthetic” than his original portrait.  He further notes that his image was used to advertise and promote the exhibition and book, a nod to the fact that courts must take into account whether a use was “commercial” in ruling on fair use.

McNatt, like Donald Graham, is a professional photographer whose work has won awards, been published in magazines, and included in fine art publications and gallery exhibitions.  In a nod to McNatt’s professional success and body of work, McNatt’s complaint asserts that Prince’s Instagram post and resulting New Portrait work “are targeted to the same markets and for the same target audience to which Mr. McNatt has marketed the Copyrighted Photograph”; that the art book “is targeted to the same derivative markets and for the same target audience to which Mr. McNatt has generally marketed uses of his photographs”; and that the Instagram post, portrait, and book are “likely to impair and usurp[] the markets (including the derivative markets) for” McNatt’s original work.  Interestingly, while Graham has emphasized that he rarely licensed his works, McNatt is taking the opposite position, noting he is “active in the market for commercial licensing of his photographs, and showcasing and selling prints of his work to fine art galleries, private collections and individual collectors,” and that the markets for licensing his original portrait of Gordon to authors of derivative works “are markets that Mr. McNatt is naturally capable of developing.”  He also notes that he has on many occasions provided his celebrity portrait subjects with copies of their portraits, “with the intention of fostering future business opportunities,” and that Prince’s actions interfered with that manner of “leveraging his copyright.”  He closes with the note that, “Were behavior of the sort engaged in by Mr. Prince to become unrestricted and widespread, Mr. McNatt would have no greater control (and thus no market advantage) over the distribution of his copyrighted works than anyone with an Instagram account and access to an inkjet printer.”

The mere existence of these lawsuits raises big questions about the future of appropriation art.  One commentator has lamented that the Second Circuit’s opinion in Cariou, instead of clarifying how fair use might apply to appropriation art, instead “made things worse,” leaving artists and copyright holders with little idea of what is protected by fair use and what is not.  Artists may be dissuaded from pushing the envelope for fear of litigation, while copyright holders in original work may not know whether it’s worth it to pursue a costly lawsuit.  This case, like Graham’s, also raises questions about third-party liability; for example, how much risk are dealers, galleries, and other art-market intermediaries taking on by marketing and trading in appropriation art?

And as we’ve observed before, these cases also challenge courts due to the unique nature of an artist like Prince, whose practices are notorious and whose works command huge prices.  Indeed, it has been argued that the mere fact that a work was appropriated by Richard Prince is what makes it transformative, not the visual changes he made (or didn’t make) to the source work.  Interestingly, McNatt’s complaint actually touches on the related idea that Prince’s overt disregard for copyright law is an intrinsic part of his art, quoting a friend of Prince who has said that “the outlaw idea is the core of who he is as an artist. . . .  For Richard the lawsuits are also the artwork.”  If a little-known artist had mounted an exhibition like “New Portraits,” would a court’s fair use analysis be the same?  Or does the fact that “New Portraits” was a Prince exhibition in itself strengthen the case for fair use?  We’ll continue to watch this and the other Prince cases closely.