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...

Log in or register to post comments

64 Comments

Your argument "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." is bogus. It doesn't matter if your photo and video have "social impact" or not, the poster in the background is still not protected by copyright in this instance because it has been transformed, and because showing the poster in this way does not harm the value of the copyright protected materials to the copyright owner. Nobody is going to buy a photo of your friend doing something cool in front of that poster rather than buy the poster, or buy another item with the poster artwork on it, so your photo has not harmed the commercial value of the poster's artwork.

If we took your argument about "social impact" seriously, it would mean that every "photo of my friend in front of a Disney poster" was infringing until/unless it was widely distributed and achieved social impact. Obviously that's impossible. It's illegal until suddenly it achieves viral status and then that makes it legal? Seriously - think that out and you will understand how bogus that theory is.

A lot of you are mad at Richard Prince. And a lot of you are mad at the collectors who paid for the images. But what we should all be mad about is the failure of our legal and legislative system to provide an effective and affordable system of protections for artists. And that shouldn't be ignored. For the first time in nearly 40 years, Congress and the Copyright Office are actively discussing copyright reform and we all need to do our part to make sure that photographers' concerns are heard. You can help by reading this page from ASMP - www.asmp.org/copyrightreform - and contributing your stories for us to consider as we draft a comprehensive response to the Copyright Office’s recent Notice of Inquiry on issues relating to the monetization, registration and protection of photographic and other imagery. Please share that link with other photographers who might have stories to share.

Alexander Francesco's picture

Thanks Nino! I enjoyed this article. My friend, who come from a family of lawyers and is getting his law degree, told me the difference between "legal" and "ethical." Remind me a story he told that goes like this: Imagine if someone accidentally left a briefcase with $2 million dollars in the middle of time square (or any public areas). By law, once that briefcase is "lost", it can belong to anyone. Would you snatch it (legal) or would you return it to the owner (ethical)?

Thanks for the post from a real attorney's perspective. The one thing I was thinking is that Instagram probably has the best case for copyright infringement, not for the use of the image per se, but for the use of their UI in the art. While the image has been modified and may have "social value" by including the UI and comments, the UI itself has not. Often companies will trademark or copyright elements of their UI, including the icons, appearance of text, the number of comments that show before the "view more comments" tag appears, etc. Prince has appropriated all these items verbatum and is now selling them as "his" work...