Picture Perfect Fair Use?

Prof. Christopher Jon SprigmanWhen is a photograph not a photograph?  When it is a work of art by Richard Prince, a master of rephotography and other appropriation practices.  Riddles that puzzle over ownership and originality have preoccupied Richard Prince for four decades.  Those same riddles, as expressed in his paintings and photographs, have made Prince an enormously well-regarded figure in the Manhattan art world and a fabulously wealthy man.

Richard Prince is no stranger either to controversy or courthouses, where he has faced charges of copyright infringement.  In May, at New York’s Frieze Art Fair, Prince exhibited copies of other people’s Instagram posts – a mix of images from celebrities and ordinary people to which he added a cryptic comment at the bottom.  These re-photographs – actually, reprints, for they were made with an inkjet printer – reportedly sold for $90,000 apiece.

Prof. Christopher Jon Sprigman asserts that Prince’s body of appropriation art is provoking a reassessment of the meaning of authorship at a time when ownership of creative works in our digital world is tenuous.  As a co-director of New York University Law School’s Engelberg Center on Innovation Law and Policy, Sprigman sees the question in light of whether the conceptual art work is transformative, and hence, very well a “fair use” under copyright.

“A lot of people thought, well, Prince takes Internet postings from Instagram, and he profits from them.  People’s reaction was (a) that’s unfair, and (b) that’s a copyright violation.  That’s where the conversation began,” Sprigman tells CCC’s Chris Kenneally.

The Second Circuit Court of Appeals, over the last decade or so, has increasingly been responsive to this idea of transformativeness – that what the copyright law is aiming to provoke is new works.  If someone takes preexisting works and transforms them in an important way – either the meaning of that work, the message of that work, or the use of that work in an important way – then that transformative use is much more likely to be a fair use.”

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