In 1996, photographer Donald Graham created a photograph titled Rastafarian Smoking a Joint (left image). Graham published the photo in 1998 to critical acclaim and offers copies for sale in limited editions. At some point, Instagram user "indigoochild" posted a cropped reproduction of Graham's photo on Instagram. Instagram user "rastajay92" reposted the photo and added the comment, "Real Bongo Nyah man a real Congo Nyah," with a raised fist emoji and an attribution to "indigoochild."
In 2014, artist Richard Prince reposted the photo and added the comment, "Canal Zinian da lam jam," with the same raised fist emoji. Prince then took a screenshot of the Instagram post, and used it to create the 4'x5' print Untitled (2014) (right image) that he included in his New Portraits exhibition at Gagosian Gallery in September and October 2014. Prince also used a reproduction of Untitled on a billboard advertising the exhibition. Graham filed a copyright registration on October 20, 2014, and sent a cease and desist letter, which Prince ignored.
On December 30, 2015, Graham filed a copyright infringement action against Prince and Gagosian in the United States District Court for the Southern District of New York, alleging that Prince had improperly used his photo without permission. Prince made several sarcastic and dismissive tweets about Graham's lawsuit, and filed a motion to dismiss, on the ground that his use of Graham's photo was a "fair use," under the recently decided case Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013). Specifically, Prince argued that his use of Graham's photograph was "transformative" as a matter of law.
On July 18, 2017, the district court denied Prince's motion to dismiss. It observed that fair use is rarely decided on the pleadings, because it presents a "mixed question of fact and law" typically addressed in summary judgment or at trial. Even though it is "conceivable" that a fair use defense could succeed on a motion to dismiss, the court concluded that Prince's work was not "transformative" as a matter of law. But it continued to address the entirety of Prince's fair use defense on the merits.
First, the court recognized that the Copyright Act requires courts to consider four factors when evaluating a fair use defense:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational 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 upon the potential market for or value of the copyrighted work.
It admitted that "this is not a case in which the 'open-ended and context-sensitive' fair use inquiry . . . can be properly applied at the motion to dismiss stage." And yet, it opined on each of the fair use factors and how it would apply them. It found that Prince's use of Graham's photo was not "transformative" as a matter of law under factor 1, because "Graham’s unobstructed and unaltered photograph is the dominant image in Untitled." And it found that Prince's use of Graham's photo was commercial, because it was on sale at a commercial gallery. It found that Graham's work was "creative," cutting against fair use. It found that Prince used substantially the entire work, but could not determine whether that use was necessary without determine whether it was transformative. And it found that it could not determine as a matter of law whether Prince's work was a substitute for Graham's photo: "At this stage, the 'market effects' factor cannot weigh in favor of defendants because there are plausible allegations that the Untitled artwork – as well as the Catalog in which it was printed and distributed – share the same audience and nature as Graham’s photograph."
Venkat Balasubramani and Eric Goldman have already provide an excellent analysis of the opinion here. I'd like to provide some additional observations, eventually riffing on Eric's question: "What is Appropriation Art?"
On its face, the district court's order looks bad for Prince. After all, not only did the court deny Prince's motion, but also it explained in detail why it denied the motion, arguably signaling how it would rule on summary judgment.
Or did it? The court repeatedly explains that it cannot grant Prince's motion to dismiss because Graham has alleged facts sufficient to make out a claim. But it also explains what it expects Graham to prove. And it could be a tall order, depending on the court's interpretation. For example, the court invites Prince to introduce "evidentiary support" that would enable a fact-finder to "conclude that Prince’s alterations imbued the original work 'with new expression, meaning, or message.'" Depending on one's interpretation of this expectation, it could be quite a low bar indeed. Indeed, the very fact that I am writing this blog post, adding to the cacophany of commentary on this dispute, suggests that Prince has made some "expression," for better or worse.
Even more interesting, the court invites Prince to provide evidence that his his work is not a market substitute for Graham's photo. While the court concludes that it cannot find for Prince on this question as a matter of law, no reasonable factfinder could possibly conclude that the works are substitutes. On the contrary, despite his aesthetic complaints, Prince's appropriation was the best thing that ever happened to the market value of Graham's photo, and presumably Graham's career. Prince's use didn't decrease the economic value of Graham's work to Graham, but increased it.
In other words, it is entirely possible - depending on the court's understanding of its own opinion - that Graham won the battle, in order to lose the war. Of course, it is also possible that I am reading far too much into the opinion, and the court was trying to signal to Prince that he would lose.
So, what is "appropriation art" anyway, and how does it reconcile with copyright law and fair use, if at all? Appropriation art is just "art." Which is to say that all art is pastiche, at some level. Historically, "artists" largely ignored copyright, because it was irrelevant to their scarcity market based on attribution. But as copyright became more pervasive and the art market became more lucrative, tensions became inevitable. I would call it a truism that artists can always justify copying someone else, but are always upset when they are copied. Prince's use of Graham's photo is functionally identical to Marcel Duchamp's L.H.O.O.Q., in which he drew a mustache and goatee on a print of the Mona Lisa. To some it is witty and profound, to others it is gauche and stupid. Should copyright care? Certainly, no one is confused or economically harmed.
In theory, the purpose of copyright is to make the market for works of authorship more economically efficient. Sometimes it works and sometimes it doesn't. As Amy Adler has observed, copyright seems largely irrelevant to the art market, and the art market seems largely irrelevant - if not outright beneficial! - to the markets for the works from which it borrows. As I have suggested in previous posts, there are plenty of reasons to be skeptical of the art market and its norms. But its rejection of certain aspects of copyright doctrine strikes me as potentially efficient.
In other words, "appropriation art" challenges the implicit normative claim that authorship justifies control. While Roland Barthes predicted the "death of the author" decades ago, the obituary was premature. But appropriation art posits the viewer as an author as well. If Richard Prince can do it, so can you.
Comments especially welcome.
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