Social media, it seems, has turned us all into photographers. Anyone with a Facebook page, an Instagram account or any of the other methods for socializing on the web, can post original photos for all the world to see, possibly forever. (Even after a posted photo is “removed,” it might be archived to one or more search engines.) Thus, the Internet is full of millions of photos by millions of photographers.
Richard Prince, a successful photographer and painter, sees this vast array of Internet photos as his personal image gallery. In fact, he enlarges copies of Instagram photos that strike his fancy and sells them as his own work for huge amounts of money—reportedly $90,000 a pop. He calls his work “re-photographing.” So what’s the problem? They are not HIS Instagram photos. For a recent gallery show in New York, Prince selected photos that appealed to him, blew them up without any of the accompanying comments (this is what he calls “re-photographing”), and called them “New Portraits.” He then proceeded to sell them without having first obtained any consent from the photographers or subjects of the Instagram photos (in many of the photos, the photographer and subject were, quite possibly, one and the same) and without paying any compensation to them.
What is going on here? Doesn’t copyright law protect these kinds of things? What about the right to prevent the commercial exploitation of one’s name and likeness (referred to as the “right of publicity”)?
Prince has been “re-photographing” since the 1970s. He takes photographs of existing photos in ads, magazine, books—anywhere he can find them—and then he tweaks the photos. However, many of these “re-photographs” consist of nothing more than reproducing the originals in larger formats.
Prince’s work has created controversy for quite a while. Back in 2008, a photographer, Patrick Cariou, sued Prince after Prince re-photographed Cariou’s images of Jamaica’s Rastafarian community. At the trial court level, the court sided with Cariou and held that Prince had committed copyright infringement. However, on appeal, the court ruled that Prince had not committed copyright infringement because his works were “transformative” and, therefore, the “fair use” defense applied to Prince’s works. Emboldened by that decision, Prince has continued his re-photographing activities, believing that the courts will protect such activities as allowable “fair use.” In fact, he has posted a series of tweets in which he has mocked and insulted those who feel that his actions are unlawful.
Under copyright law, the owner of a copyright (in this case the copyright to a photograph) owns a bundle of rights. Included in that bundle is the right to create “derivative works” based upon that work. The Copyright Act defines a “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Prince’s “re-photographs,” I believe, are a form of an art reproduction.
The language in the Copyright Act, at first blush, seems to lead to the conclusion that Prince’s works are merely unlawful derivative works. However, a landmark U.S. Supreme Court decision from 1994, in which the Court was asked to interpret the Copyright Act’s “Fair Use Doctrine” as set out in Section 107 of the Copyright Act (which provides a defense to a claim of copyright infringement), may allow Prince’s work to be deemed to be “fair use” of the Instagram photos. In the case of Campbell v. Acuff-Rose Music (a case involving rapper Luther Campbell’s unauthorized cover version of Roy Orbison’s classic song, Oh, Pretty Woman), the Court established another element to be considered in assessing whether a use is a “fair use:” whether or not the unauthorized use is a “transformative use.” While some consider this to be a new “fifth element” to be considered, most legal scholars consider the “transformative work” test to be an element to be considered as part of the analysis of the first of the four statutory factors set out in Section 107 of the Copyright Act, i.e., the purpose and character of the work.
Recognizing that this new element to be considered might be viewed as a direct contradiction of the Copyright Act’s concept of the “derivative work,” the Campbell Court stated that a derivative work becomes a “transformative work” (and, thus, entitled to fair use treatment) if it uses a source work in a completely new or unexpected way. In other words, even though the statute says that a copyright owner may stop others from preparing derivative works based on their copyrighted work, if that new work is “transformative” enough, the copyright owner may not be able to stop the use, even if the other four fair use factors set forth in the statute weigh against a finding of fair use. One thing that has led to quite a bit of confusion over the years is that the definition of a “derivative work” includes a work that is “transformed.”
There have been numerous court decisions since 1994 in which a party has claimed that its use of a copyrighted work constituted “fair use” where the courts have applied the Campbell case’s “derivative work vs. transformative use” test. However, in my view, this is still a very muddled area and predicting how a court will treat any particular set of facts is somewhat of a mystery. In the current situation with these Instagram photos, Prince’s “transformative use” consisted of removing the original comments from the posts, blowing up the photos and adding his own comments. Even with the Supreme Court’s broad view of “fair use,” I fail to see how Prince’s work can be seen as using the Instagram photos in a “completely new or unexpected way.” Still, in light of the 2008 case referred to above, no party has stepped forward to bring legal action against Prince as a result of his use of the Instagram images.
Apart from copyright claims against Prince’s work, I think that there also may be right of publicity claims here. The right of publicity (which is the subject of a prior blawg post is a state law right that protects various aspects of a person’s name, likeness and persona. The scope of the protection varies from state to state, and the right is not recognized in every state. There is no uniform Federal right of publicity (like copyright law). Prince’s works are images of people. They are being commercially exploited. Under some state’s right of publicity laws, this may be actionable as a violation of the pictured individual’s right of publicity. However, many right of publicity statutes, where such laws exist, exempt from protection the use of an image in connection with the creation of a work of art (what I like to call in Pennsylvania, the “Andy Warhol Exception”). To my knowledge, nobody has asserted any such right of publicity claims against Prince.
So, be careful about what you post. Your face, or the faces of your family and friends, could end up staring down from the walls of a wealthy art collector.