The Latest Richard Prince Controversy, Clarified by Patent and Copyright Attorney John Arsenault

The Latest Richard Prince Controversy, Clarified by Patent and Copyright Attorney John Arsenault

Specifically, John is my attorney, and I am lucky to have him on my side of things when it comes to my work, as he is rather sought after and emerging as one of the preeminent patent and copyright lawyers in the country. But before I go into that, I will say that I know I'm going to catch hell for this article today, as evidenced by the many and varied opinions I've seen in the industry about this latest Richard Prince controversy. Here goes nothing.

In the world of legal counsel, not all lawyers are created equal. While any attorney worth their salt can offer appropriate legal advice on all-things-law, there are some situations where a specialist is not only preferred, but nearly required. Copyright law is, without a doubt, one of those situations. This is why I immediately rang my long time good friend and attorney John Arsenault of Donelson Barry LLC, who is increasingly becoming known as the one attorney who actively gets things done where others seem to fail, and asked him to clarify this fine art nonsense for me.

The fact is, copyright law is more flexible and ever-evolving more than most people realize.

Sure, most people know that if I download an image by Annie L, print it on 30x40 canvas, and sell it at a gallery, I've infringed on her copyright and I'm going to be rightfully sued to oblivion. That's pretty straight forward, and almost no one has any doubts on egregious scenarios like that. That's making money off of someone else's work, 100%.

Where things get sketchy and blurry is when it comes to something in the copyright world called Fair Use, especially when it comes to the bastion of staggering knowledge and ridiculous bullshit we call the internet

What the hell is Fair Use and why should you care?

John and I began our early morning conversation with an overview of Fair Use (far earlier for him as he was in Los Angeles with another client - thanks for squeezing me in, Johnno!), and how it relates to the world of photography, and by extension, visual art as a whole. He started with these four salient points that he asked me to consider when I pondered Fair Use:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. Nature of the copyrighted work, as well as the specific content of copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.


Legal talk - hooray? But really, give it a chance, reread it if you must. Get your head around these points, and let's then continue our analysis.

Let's get to it: Is Richard Prince guilty of copyright infringement?

Oh deary me, this is gonna start to sound clear as mud in a minute, but stay with me. First off, Prince is hardly new to the appropriate someone else's work, modify it, and sell it as fine art game. He actually enjoyed a legal victory in the case of Cariou v. Prince years ago, wherein it was determined, as stated in the article, that the "decision was largely overturned today, with the exception of five paintings that, the court concluded, must be reevaluated for claims of fair use." Expectedly, this was controversial in the photography community at the time, for precisely the same reasons Prince's current gallery showing and sales of Instagram screen cap prints has today. To the average photographer out there (myself included), it seems insane that Prince could get away with what, on the surface, appears to be a cut and dry case of image theft and copyright infringement. However, as I said, copyright law is an ever-evolving thing, and it is still evolving at an accelerated pace as the internet continues to expand. So, the answer is "No, not at this time.", and you need to accept that Prince didn't break any laws to the point where a legal case is "obvious". 

Not convinced? If you didn't read the article about Cariou v. Prince I linked above, take a read at this excerpt:

"We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs," writes Judge B.D. Parker in the decision, which was released this morning. "We further conclude that all but five of Prince's works do make fair use of Cariou's copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense."

Note the language used by Judge Parker in the last sentence. He's basically saying that he himself doesn't know the answer to the question of whether or not those five particular images violate copyright or allows Prince entitlement to a fair use defense, and that they were going to send it to the district court because they don't want to fuck with it.

How is this possible? How can someone take your photograph, modify it, and then sell it - legally? And since when are people who steal photos to sell them entitled to anything?

The patent and copyright attorney weighs in.

Attorney John Arsenault isn't a divorce lawyer who dabbles in international tax law. He is, instead, a highly specialized expert on specifically the world of patent, copyright and licensing law. He shined some clarity on this matter over our red eyed phone conversation, starting with the facts most of us didn't want to accept.

"His argument is hinged around the text/commentary attached to it - so he says it has social value so he says he can do that", Arsenault stated, "I personally don’t think that that fits in the spirit of copyright law, but, I think his position is that he is transforming the original work. He is taking an online work, reprinting more than just the photograph. If he downloaded an image, and printed it, as is, and sold it - that’s clearly copyright infringement. But if you take the Instagram [screen shot] with some of the commentary below it, then you have an argument that it has social value. This hasn’t been tested in the way he is doing it, by the courts, not specifically this question. I think this is open ended still, and it would be absolutely an interesting question to take to the courts."

But here's my thing: What the hell constitutes "social value"? And why does it matter?

I come to find out, it matters because copyrights on images, videos, paintings, and music is very much a two sided matter. That is, the laws are specifically crafted (I used the term loosely) to offer protection when legitimate copyright transgressions occur, including and especially when said infringement causes monetary damage to the copyright holder. Said another way, the laws exist so you can sue someone for selling your image without your consent, especially if they make more money with it than you ever did.

However, the laws also need to consider the sue-happy society we live in, and offer reasonable protection from abusive or frivolous lawsuits, as it relates to copyright law. [NOTE: I had originally cited the McDonald's hot coffee case as an example of frivolous lawsuits, but have since been shown information I wasn't aware of that seems to justify said lawsuit. Rather than expound on that anymore, I'll issue this correction for the Commenters on this article and continue discussing the Prince case.)

Think of it this way: Forget you're a professional photographer for the moment, and imagine you're a person with a smartphone camera. One day, you snap an admittedly amazing photo of your friend doing something seriously attention getting on the street. You take the shot, and then upload to Facebook. Your online friends think it's funny, they share it, and share it, and share it, and then everyone shares it and now you're officially in viral territory with it. You then make a quick video about the taking of the photo, and how it spread around the interwebs and gained you some temporary public attention, and add it to YouTube. The video goes viral as well, and you are now getting tons of attention from it.

But then you get a nasty, nasty phone call from the legal department of Disney, and they claim you used their corporate branding and likeness illegally and therefore you are being sued.

Wait, why? Because, hey, you didn't notice your snapped your friend being awesome right in front an Avengers poster, right there on the building behind your friend. Disney is saying you didn't have permission to use their copyrighted property in your image. Ridiculous, no?

You see, in a world where copyright law didn't have Fair Use, you could get sued in this scenario and you could lose. Understand that, in effect, this imagined phone snap of your friend in front of an Avengers poster is a piece of art that has social value. Many millions of people were emotionally moved by your photo and subsequent video, and it arguably made a cultural and social impact as a piece of art. An Avengers poster being in the shot by simple chance doesn't change that, nor is it reasonable for Disney to sue you because of that. As such, (mostly) outdoor public places usually fall into Fair Use when it comes to copyright. Although this is a hugely controversial matter in and of itself, so remember here again, copyright law is actually annoyingly malleable.

Yeah ok, but did Richard Prince break the law or what?

Arsenault weighs in once again:

"If you look at just the photo(s), then it looks obvious he did. But if you look at what he’s doing, I would say he’s using a loophole, that’s all. He has won cases before using similar arguments, and now he is pushing the envelope. This isn’t easy, I wish it was easy. When I first saw it, I thought it was cut and dry. But then I looked again and saw what was captured specifically, and the commentary under it, then it creates a question. A silly question, especially given that he has sold these for money, but there you go."

Well poop. Can anyone even take him to court about this Frieze Gallery showing and art sale? John wasn't 100% sure, but added "I believe there is an argument to be had, but I also understand how he can use Fair Use in his favor based on the facts. The subject matter of his works, the republications, I can see where he is going with that. He has some key arguments on his side. He isn’t selling bootleg videos (of copyrighted films) in downtown Los Angeles, for example. That’d be egregious. In this case, he found photos, yes intentionally, and included the existing commentary (and Instagram digital interface), as well as his own commentary, so he is trying to make that statement his, as an artist."

What is clear here is that copyright law is about as succinct and clear cut as an endless stream of cream gravy pouring on your windshield as you drive to the studio. The bottom line is, Prince did not go into this project thinking he could simply get away with obvious copyright infringement, nor did he go into ignorant of the laws. He plainly knew what he was doing, and danced dangerously close to the line in order to stir up a public response, as art technically should do.

All mediums have had their share of controversial works and controversial artists, mostly because of the specific content of the work. In the case of Richard Prince and the Instagram screen shots, the content of his artworks is not in and of itself controversial, but instead it's the legal aspects of the images that caused the photography industry to lose our shit, once again.

True enough, but, I call foul on Prince. 

As Dr. Malcolm said in the original Jurassic Park, "your scientists were so preoccupied with whether or not they could that they didn't stop to think if they should." Replace your scientists with Richard Prince, and the same points hold true. There was no reason at all to do what he did except to stir up controversy. This is fine, I guess, and hardly unprecedented in the art community. But why do it? I wouldn't, as I prefer respect, perhaps adoration even, over notoriety any day. But then I've never claimed to be a serious artiste either, and generally have kept my career in what some might refer to as the realm of blasé art.

Meh.

Right, so, would it behoove anyone to sue Richard Prince?

Once again Arsenault chimes in, this time saying he'd take on such a case against Prince, but not for the reasons you might think. "I would take it on to see how far the limits of copyright can go (fighting fire with fire?) and I think it would help copyright law as a whole. There are cut and dry cases, but there are cases like this that seem obvious, but on second glance not so much."

Arsenault is clearly in the right profession, and more power to him. However, before my gushing could commence, he reminded me of the main point he chastises me about, more or less once a month, by adding "If the works [Prince] used were federally registered in advance, the original photographer could try to claim statutory damages and see where that would lead." (Raise your hand if you think Prince, and or his minions, took the time and effort to determine if any of the gallery prints had federal copyrights before doing this, and avoided using any that did. You can put your hands down now.)

One of the biggest mistakes photographers make is overlooking protecting their work, officially, by registering a copyright with the government. Such a registration does not guarantee you won't be infringed on, but it gives you 10,000% more power to fight said infringements and almost certainly win.

Hold up, doesn't Instagram actually own the copyrights to those images? 

Ah yes, the End User Agreement, you rear your ugly head. The good news is, Arsenault had some things to say about that as well.

"I cannot speak for every End User Agreement, but I can tell you generally that they do is, in exchange for allowing the photograph to be hosted on their website, you give them a worldwide, perpetual license to reuse and distribute your image for their needs. Mostly for their advertising. They retain some rights. You do not necessarily give up your copyrights to your image, but you allow a 3rd party to do more with your work than you likely anticipated. But keep in mind, [large social media networks] are not in the business of attaining images and selling them for profit (which would almost certainly be a public affairs catastrophe for them if they did). However, to the extent where it provides better targeted marketing, like if you see your [friend's profile] in an Instagram ad, then the effectiveness of targeted advertising is what [the social media networks] are protected from."

He adds "You have a common law copyright even if you don’t register your work. But that's not as powerful as a federal registration of copyright. Your federal copyright must be done in advance in order to protect you. Uploading to Instagram does not take precedence over your federal registration of copyright. You still own the rights to your image, but you need to know what you're agreeing to, as well."

Instagram, nay, Facebook, are likely taking on the stance of "My name's Wes, and I ain't in this mess" when it comes to this Richard Prince matter, and I don't blame them. Also remember, while social media networks aren't actively seeking to steal your photos to sell them as cheap stock art (again, remember that would cause an intense, global firestorm of hate and likely sink the company), they do want to force you to agreeing to let them use any part of your profile and content in their advertising if the need should come up. 

An iPhone screenshot. I would bet almost no one would ever consider suing anyone else for posting this on a blog, for example.

 

The same screenshot, now modified as high art, for prominent use on gallery walls and high society art auctions.

 

My original image, no Instagram interface, and my logo prominently displayed. This is a no go for someone else to print and sell as their own, in a gallery or otherwise. And no, Instagram didn't steal my copyright because I filled out an online form, and no Instagram isn't going to start selling this image as a digital stock art download for profit.

Summary

Richard Prince, did he infringe on copyrights?  That isn't entirely clear as things stand. If this gallery showing and art sale send Prince to court, you could see the laws evolve once again. Whether they will evolve in a manner that helps Prince's "cause" or hurts it, well, that's not totally clear either. Either way, Prince gets epic attention on a global level, and makes any upcoming works he releases that much more valuable. Not that I understand art aficionados who are batshit enough to pay $90,000 for a print of an Instagram interface screen shot, but I digress.

Instagram or Facebook, can they sell your images legally? It seems no they can't, sort of. Or maybe put simply, they wouldn't try to because of the immense public fallout from such an act, legal or otherwise. So, you're actually pretty safe when you upload your photos to Facebook. You're even safer if you get the federal copyrights on your work, so get on it.

Let the impassioned opinions commence...

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64 Comments

The people buying work from these galleries aren't buying them because of Yelp reviews. 1 starring them does nothing.

double post. how to delete?

People buying his work, and generally art, are collectors or investors. Collectors collect art because of the prestige, and investors because they think the price will go up some years from now. Generally, most collectors are investors too, and part of the collecting reason an prestige comes from how much the work has grown in price after buying it.

In this world, all publicity is good publicity. If he is sent to court, if we make demonstrations. The larger the outcry, the higher his work will be in price. You will prove his point, put him on the statue of other artists, that in my opinion he doesn't deserve.

Personally, I think that ignoring him is the right move if you really want to hurt him. Not making campaigns.against him. Just commenting that he has no value, so it is no worth doing a thing against him is enough.

Jim Hall's picture

What about Donald Graham another pro that you did not mention in the above, I would think that he has registered his images. He was none too pleased and sent a cease and desist back when the pieces were at Gagosian. http://hyperallergic.com/183036/photographer-sends-cease-and-desist-lett...

Does that mean that if I copy a new movie and add something of my own I can't be done for Copyright Infringement? Just download a copy and include some text around the screen? Fair use?

On a serious note, I'm more offended by the galleries condoning and endorsing Prince's (ha) work. One even has the gaul to include on their web site that all images are protected by Copyright legislation.

I guess the purchasers of these could have saved a bundle and just contacted the true artists and owners and creators of the works. Probably a lot cheaper than $100,000 paid to Prince.

Perhaps I could photograph Prince's work (still doesn't sound right), add my own to it and then sell it?

Eric Lefebvre's picture

For example, some of the images were "appropriated" from Suicide Girls IG. They are now selling the same type of prints as Price for 99$ instead of 90,000$. :)

Yea but you're also forgetting the fact that SG pays their own photographers nothing and retains all the rights to the images etc etc. They're not so clean themselves, as shown by a Reddit IAMA where they neglected to answer questions that call them out on their bad practices.

Eric Lefebvre's picture

Oh I iknow! I've refuse to do SG shoots. Their contracts are so predatory!

Yes, isn't that what Mystery Science Theater 300 does? Also yea you could do whatever you want to Prince's work and legally not be in a bad area, but then it's also a question of whether it's good or bad art.

Adam T's picture

And yet Shepard Fairey gets sued for completely repainting a poster because of the source photo was owned by the AP.

If this Prince guy really had any balls he would have used a Disney Photo.

Percy Ortiz's picture

Well that was an interesting reading. Let me say a couple of things i need to get out of my chest in regards to all this Prince and copyright fiasco:

1.- Nino, my respects as usual. well done for going to the lengths you did in bringing this article to us Fstoppers

2.- Richard Prince can go die a slow painful death regardless of whether te law is or not in his favour. This is my opinion and I am entitle to it

3.- When it comes to copyright law, ‘fair use’ and any legal related matter. It seems is only valid until someone finds a way to challenge it in court. Then it evolves and changes in an effort to try correct itself and will be valid again until the next time someone find a way to challenge it again. It is a never-ending loop and the only fair conclusion you can be sure of is that your work will never be fully protected and you will always be at risk of someone somewhere using or ‘borrowing’ your work without your consent. It may never happen to you, but it could.

Conclusion: Live life, create, value and charge your work accordingly and then move on...

Now if you all excuse me, I'm going to go and find the most popular photos here in the FStoppers community, comment on them, screen cap them and print them so i can sell them in my next exhibition because, even though i shouldn’t out of respect and professionalism, well, I apparently can…

Someone else might have asked this, but I haven't seen it addressed. What about the fact that he is selling pictures making money without consent from the model? I mean I can see where you were going with the "technically you can do this with someones photos" because of the way the law is, but doesn't the law also say you can't use a picture of someone for commercial use or monetary gain with out the model signing off on it?

Eric Lefebvre's picture

You don't need a model release for fine art prints. He isn;t making commercial use of their likness ... at least not in a legal sense.

Here is an excerpt from an article over at PDN Online about model releases (would also apply to trademarks and property releases).

Nancy Wolff is a partner at the law firm Cowan, DeBaets, Abrahams & Sheppard in New York City.

The act of selling something by itself is not – and most people get very confused with this – a commercial act that requires a release. The fact you make money from something doesn’t necessarily mean the ultimate use is a commercial use. Otherwise you could never license any news photographs. The New York Times would have no pictures in it other than those taken by staff. The fact that you make a sale is not what triggers whether you need a release or not; it’s the context in how that photograph is used. If you were going to make a sale of a photo of, for example, someone on the street attending a St. Patrick’s Day parade, you could sell that to magazines, newspapers, online blogs, anything as long as there’s a relationship between the photograph and a truthful news or public interest story.

You could also create and sell fine-art prints because photographs are an expressive work. The First Amendment of the [U.S.] Constitution protects freedom of expression and freedom of speech, and visual images are part of speech and they’re also an expressive work of a photographer. So all the state privacy laws must be interpreted and drafted in a manner that does not overstep the boundary of the First Amendment. In the U.S., freedom of expression outweighs privacy concerns when it comes to the use of images for editorial use and expressive uses.

well...that is extremely aggravating in this particular case then

But that law also protects everyone else who sells their own street photography that have other people in it. You can sell it without needing a release.

Eric Lefebvre's picture

In this specific case yes. But without this law, we wouldn't be able to do much with our photography.

Imagine you are trying to sell prints of a sporting event to the participants/parents and needing to get model releases of all the players in the shots from both teams and of anyone else who might possible be in the frame.

Imagine trying to sell images of a news worthy event to a newspaper and requiring a model release of everyone in the shot ...

Imagine as a wedding photographer needing to get model releases from all the guests to be able to sell the bride and groom their family pictures and pictures of the reception!

Imagine being hired by a large event (concert, fair ...) and needing to get releases from everyone you shot?

A state was recently trying to pass a law where you would need a model release for ANY use of a picture! It got squashed fairly quickly.

yea, I guess I was thinking along the lines that these particular shots are not of large crowds or public places but are of actual models. Like the original pictures are of models who i'm pretty sure were paid to pose for a specific purpose and for a specific person.

To add to Eric's comment, yes if it was created for fine art purposes you don't need a release. You weren't creating the work with the intention of profiting from it, like a sportswear advertisement. Someone sued DiCorcia for this exact reason and lost because DiCorcia was making pictures as fine art and not as an advertisement.

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

And that kids, is how something can be immoral, wrong and legal at the some time!

If a bunch of high on the horse el-chique artsy maroons with more money than brains would stop paying 100k for Instagram screenshots then this would be a non issue.

When the hell did we reach a point in 'art' when screen captures of a cell phone pass as millions of dollars worth of a collection?

Eric Lefebvre's picture

Seriously? I've seen some pretty weird stuff go for tons of money.

Concetto spaziale. - 1.5 Million
A slashed up red canvas

Rhyne 2 - 4.3$ Million
A landscape photo where a factory was photoshopped out.

Onement VI - 44 MILLION! (Forty Four, not four point four).
A blue canvas with a light blue line in the middle.

Blood Red Mirror - 1.1 Million
A pure red canvas.

A Yellow Canvas with a stripe of blue (un named) sold for 46 Million.

Is it art? Sure. Is it worth MILLIONS? I don;t think so.

Scott Spellman's picture

A scribble or comment should not be enough to satisfy the fair use criteria, but if it is then I will copy Prince's art, scribble the word "violator" on it and sell it for $.99 at the art gallery next door. The real people we should be mad at is anybody that would pay $90,000 for this crap.

Nino Batista's picture

Do it.

Michael Rapp's picture

If Prince's intend was to cause a stir, make people think and push the envelope of moral perception and reflection - you can't get more artsy than that.
Fine, I get that.
What makes me uneasy is that money he's making from it (artists are by definition supposed to be church mouse poor). It would have felt a lot better if he'd donated the proceeds or split them with the co- artists.
Side note: in the music industry, there's the collaboration clause, if that's what it's called: if you contribute as much as a single note to a song, you're automatically entitled to a huge chunk of the proceeds). Might be worth looking into, but I digress..

Oh Nino. If you think you were going to be unpopular with your post, I won't be surprised if I get kicked off of Fstoppers for what I'm going to post.

1) Where's your research in who this artist actually is, what and why he's doing his art, and who proceeded him in the "appropriation art movement" since the 1920's that includes no less than 3 influential artists: Warhol. Lichtenstein. Duchamp.

2) If you would have taken the time to do that, you would've ran across a YouTube interview of RP, where he straight out states he could care less what people think of him... most of all the art community. He does what he does because he wants to do it... that's all(!) No copyrights, laws, critics or lack of fans will stop him (his words!). He also says he's just happy that people buy his work so that he can continue to do anything he d*mn well pleases. Really... he comes across as genuine in these statements.... and honestly a bit off his rocker.

3) Gagossian.... as you should well know... is one of the largest, richest and well connected galleries in the world. They set the prices. He gets his contract cut. End. I'm also shocked that your lawyer didn't tell you that, and rather surprised if he ever would take a case like this pro-bono... against the entire art community including the Rockefellers, Gugenheims, etc.? NUTS!

4) You being a graphic designer for so many years prior, how disappointed I am in that you of all people don't see the beauty of the layout of the Instagram screens... which by the way are quite a bit different than the ones you showed. White space. Grid. Instagram GUI artists to respect. Doll designer. Appropriation of the look by Doe Deere. All of that.... including Emojis (more unappreciated artwork!), comments... and a snide remark, which BTW is also protected under copyright. If nothing else, Richard Prince has brought attention to the fact that even the daily mundane can be art if presented outside it's daily normal confines. Oh hell! Right! That's actually what appropriation art is all about (look it up!).

5) Last but not least... and this point extremely disappoints me.... but maybe you should go back and ask your lawyer if the Freedom of Expression laws that protect Richard Prince, are not the very same ones that you enjoy in your particular photography-niche. Just ask Hugh and Larry the next time you see them what they went through for YOU to be able to enjoy YOUR (and their) freedom of artistic expression. Have you ever picked up an old Playboy or Hustler from the 70's? Packed full of appropriation art AKA parody in some cases, but still fought tooth and nail to have the right to publish it as freedom of expression "ART".

How you missed (skipped ober?) all that... and succumbed to a crowd-pleasing emotional finalé is beyond my comprehension. I pegged you FAR more intelligent, inquisitive and well read than that.

Nino Batista's picture

Ah well, I can live with that.

M Russell's picture

The question is: Who would pay millions for a ripoff from a no talent hack?

Shame the people who are enabling him by buying his work.

Nino Batista's picture

I wouldn't.

Charles Yeager's picture

Nice write up Nino! But, when it takes a lawyer this many paragraphs to explain to me why it is 'legal', my BS meter is going through the roof...

Nino Batista's picture

Agreed! I asked John to be as objective as he can as if he were going to court with it, and minimize his personal opinions. What was left was all very weasel-sounding, as the laws tend to sound...