Famed “appropriation artist” Richard Prince has spent much of his career testing the boundaries of fair use.  He was the defendant in the high-profile case of Cariou v. Prince, which revolved around a 2008 exhibit at the Gagosian Gallery called “Canal Zone,” in which Prince extensively appropriated works from Yes Rasta, a book of works by photographer Patrick Cariou.  Cariou’s ensuing copyright-infringement lawsuit culminated in a 2013 Second Circuit opinion, which held that the majority of Prince’s works constituted fair use of Cariou’s photographs under federal copyright law.  See Cariou v. Prince, 714 F.3d 694 (2013).  The Cariou decision has been widely discussed (and even criticized by another federal appellate court) for its focus on whether an allegedly infringing work is sufficiently “transformative” so as to alter the original work to create “new information, new aesthetics, new insights and understandings.”  This spring, Prince is back in the spotlight, with a new exhibit where Prince again makes liberal use of other people’s photographs.

The Frieze Art Fair featured a series of works by Prince (previously shown privately at Gagosian) simply titled “New Portraits.”  The portraits consist of screen shots of photographs posted by users of the photography-based social network Instagram.  Prince apparently altered the original users’ images by enlarging them before printing them on canvas, and by manipulating the text (eliminating captions and comments) underneath each image so that only a few comments are visible and the final comment is by Prince himself.  (His comments are brief, often cryptic, and sometimes accompanied by emojis.)  None of the original photographers were notified of his use of their work, let alone consented, and it has been reported that nearly all of the more than three dozen works in the series sold, at prices up to $100,000.  Responses have ranged from heated criticism to fascination to (in the case of one of the Instagrammers whose work Prince appropriated) a seemingly bemused but matter-of-fact resignation.

Several of the stories covering the exhibit seem to take for granted that Prince’s copying here is legal.  One outlet made the blanket statement that photos posted to Instagram are “public, and given the flexibility of copyright laws, can be shared — and sold—for anyone to see.”  As another legal writer recently observed, there is frequently a misconception that a work that is publicly available is in the “public domain” and not covered by any copyright; to the contrary, Instagram users own the copyright to their photographs even if they are made available to the public.  Another story covering the Prince exhibit posited generally that “[Prince’s] work (including these Instagrams) falls under fair use.”  But is it really that straightforward?

Viewing Prince’s latest venture in light of Cariou v. Prince is instructive, because that decision would govern any suit brought in federal court in New York over “New Portraits.”  The Second Circuit’s Cariou decision discussed the four statutory factors involved in a fair use analysis:  (1) the purpose and character of the use, including whether the use is of a commercial nature (as opposed to educational or nonprofit purposes); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for the copyrighted work.  But in discussing the “purpose and character” of Prince’s use, the Cariou decision placed significant focus on the question of whether the use was “transformative.”  714 F.3d at 705-711.  The holding that Prince had made fair use of Cariou’s photographs hinged at least in part on the majority’s conclusion that Prince’s “Canal Zone” works had “a different character” than Cariou’s—that Prince had not merely “presented the same material as Cariou in a different manner,” but instead he had “add[ed] something new” and “presented images with a fundamentally different aesthetic.”  Id. at 705-08.  The majority noted, for example, that Prince’s “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the [Cariou] photographs, as is the expressive nature of Prince’s work.”  Id. at 706.  Conversely, the Cariou court remanded for further examination five specific images which, in the majority’s view, “[did] not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law,” given “the minimal alterations that Prince made in those instances.”  Id. at 710-11.

Applying this reasoning to Prince’s Instagram appropriations, it is clear that any litigation arising out of “New Portraits” is not going to be resolved by a straightforward regurgitation of the Cariou analysis.  For one thing, Prince’s use of other photographers’ Instagram images certainly seems less “transformative” than the over-painting, tinting, and collage work he did to alter Cariou’s Yes Rasta pictures.  In “New Portraits,” while he has manipulated and added to the text comments underneath each image, Prince has done essentially nothing to the appropriated images themselves, other than screen-shot and print those images, in their entirety, onto a larger canvas—a change that may not result in a “fundamentally different aesthetic.”

A transformativeness analysis of “New Portraits” might differ from the Cariou in other ways too.  Prince’s work in “Canal Zone,” by his own admission, was not focused on Cariou’s original intent and did not seek to make any comment or observation about the original works themselves.  Id. at 706-08.  In contrast, his works in “New Portraits” do arguably have something to say about the Instagram images he appropriates.  Indeed, in a lengthy essay by the artist himself, Prince mused about his fascination with Instagram as a network and as a voyeuristic experience, and his process of choosing images and manipulating comments:  “Whatever I did, I wanted it to happen INSIDE [the Instagram application] and before the save [that is, before he took the screen shot]. I wanted my contribution to be part of the ‘gram.’ I didn’t want to do anything physical to the photograph after it was printed.”  It’s possible that a court might see this as the type of explanation (notably absent in Cariou) that might actually strengthen a fair-use defense—the notion that the artist is borrowing the original work in order to comment on that work and on the popular culture that produced it, something more akin to satire or parody than his work in Canal Zone ever was.  On the other hand, the Cariou court cautioned, “What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.”  Id. at 707.  Would a reasonable observer see anything in “New Portraits” other than overt wholesale copying?  Has Prince’s minimal manipulation of the original Instagram images really added some transformative meaning or made some perceptible comment on the originals?

Moreover, the Cariou court, in discussing the fourth fair-use factor, noted that there was “nothing in the record to suggest that Cariou would ever develop or license secondary uses of his work in the vein of Prince’s artworks. Nor does anything in the record suggest that Prince’s artworks had any impact on the marketing of the [Cariou] photographs.”  Id. at 708-09.  It’s difficult to say how that analysis would apply in the context of “New Portraits.”  It is possible, even likely, that some of the photographers whose Instagram works Prince copied would love to blow up their photographs and selected accompanying comments and sell them in a Manhattan art gallery.  But the Cariou court also emphasized that “Prince’s work appeals to an entirely different sort of collector than Cariou’s,” given his celebrity following and the huge prices his works command—and “nothing in the record suggests that anyone will not now purchase Cariou’s work, or derivative non-transformative works (whether Cariou’s own or licensed by him) as a result of the market space that Prince’s work has taken up.”  Id. at 709.  When it comes to “New Portraits,” Prince’s market is clearly quite different than the “markets” of the original Instagram photographers, many of whom, like Cariou, have likely “not actively marketed [their] work or sold work for significant sums.”  Id.  And it is debatable whether Prince’s use of these Instagram images will have any negative impact on the market for the original users’ works (indeed, the attention might make the originals more desirable).  This analysis would likely lean in Prince’s favor—although it perhaps begs the question of whether the standard for fair use should be different based on how famous the alleged infringer is and how much his fans are willing to pay for his creations.

In this vein, it is interesting that one of the sources of Prince’s Instagram images is giving Prince a taste of his own medicine.  Some of the images Prince appropriated for “New Portraits” came from the Instagram feed of SuicideGirls, an alternative pinup model website.  The website’s founder, Selena Mooney (who goes by the name Missy Suicide), recently announced that SuicideGirls will be recreating several of Prince’s works on canvas, with the only difference being one final text comment underneath, added by SuicideGirls—“real art.”  The SuicideGirls’ recreations of Prince’s canvases will be offered for sale for $90—a fraction of the rumored $90,000 price tag paid for one of the Prince “New Portraits” based on the SuicideGirls works—and the profits will go to the Electronic Frontier Foundation, an organization dedicated to “defending civil liberties in the digital world.”  Prince himself has weighed in on Twitter, saying that the SuicideGirls’ response is a “[m]uch better idea… Missy Suicide is smart.”

Finally, there is another interesting wrinkle involved in “New Portraits” that wasn’t present in Cariou; there are contractual terms of use governing Instagram users, including Prince and the users whose work he appropriated.  Instagram apparently does not intend to pursue any action against Prince, indicating that when it comes to infringement occurring outside the Instagram platform, users must “enforce their own rights.”  But one commentator recently suggested that a user might consider suing Prince for breach of the Instagram terms of use, on the logic that Prince’s fellow users are the intended third-party beneficiaries of his promise not to exploit content “licensed by Instagram” (which presumably includes the images uploaded by its millions of users, who grant Instagram a license to those works).

Of course, all of the above musings are speculative at this point, since there is as yet no legal claim against Prince over “New Portraits.”  But the exhibit shines a spotlight on the ongoing question of how the fair-use doctrine plays out in the art world, especially as technology continues to change the landscape of art and copyright.