BLURRED LINES: Richard Prince Exploits the Muddy Waters of Intellectual Property Law

By - Wednesday, June 3rd, 2015

BLURRED LINES: Richard Prince Exploits the Muddy Waters of Intellectual Property Law

Did Richard Prince cross the line? Widely known in the art community for avidly appropriating images created by orders, Prince strikes yet again with his latest work, “New Portraits.” Featuring screenshots of Instagram posts with the names and comments of users, including Prince, they sold quickly despite the $90,000 price tag at the Frieze Art Fair in May.

Doe Deere Instagram

Doe Deere, one of the users featured in the photographs, posted on her Instagram feed that she will not go after Prince for a share of the proceeds, perhaps deterred by the possibility of a bleak outcome in a lawsuit against Prince for copyright infringement. 

In 2008, “Yes Rasta” photographer Patrick Cariou sued Prince for incorporating his black and white photographs into prints exhibited by Prince at the Gagosian Gallery. The lower court ruled in favor of Cariou, holding that Prince did not sufficiently transform Cariou’s work to constitute fair use. Prince and Gagosian (the gallery was also sued) appealed to the appellate court, which ruled that 25 of the 30 works exhibited constituted “fair use.” Some of the photos have sold for over $10 million, a healthy incentive for appropriation artists like Prince. On the other hand, as of 2010, “Yes Rasta” has sold a mere 5,791 copies with just over $8,000 in sales.

In this technological landscape, Instagram image appropriation has proliferated. Even corporate entities such as Vogue and Mango have shamefully joined in on the screenshot-and-post trend. The fashion outlets have since apologized to the offended users and acknowledged and addressed the misappropriation after users have reported them on Instagram.


 

Stolen (stamp)

How to Report Stolen Photos on Instagram

You can report any stolen photos on Instagram by filling out this online form. You need to provide your contact information and details and links to the infringing content and that of your original work or photo. I have successfully used this method in two misappropriation instances and Instagram has taken down the infringing content. It might not deter appropriation artists, like Prince but it is one way to protect your intellectual property.

Protect your photos by embedding a hidden copyright mark in your images. Here are a few apps that you can use.

Take photos with unique details that leave little room for doubt as to the originality of your work. This will come in handy when you describe the infringement in detail. For example, a user had posted this photo from my Instagram feed without my knowledge and consent. Citing details such as the wet concrete and the figure (my sister) in the foreground, provided support for my claim.

For more information on filing Instagram Copyright claims, click here.

 


Suicide girls 

Another Prince casualty, the Suicide Girls, struck back by selling their own meow-worthy images for charity for $90. A good move considering the time and expense of litigation. Most copyright suits, including the one Cariou filed against Prince, are settled anyway, leaving us with no clear precedent. In fact, a search of the US Copyright Office Fair Use Index indicate that the U.S. Supreme Court has heard only one fair use case.

In the landmark case, Campbell v. Acuff-Rose Music, Acuff-Rose, the owners of the copyright to Roy Orbison’s “Oh Pretty Woman,” sued rap group, 2 Live Crew for copyright infringement for “Pretty Woman,” a parody of the Orbison song. In a case that went all the way to the United States Supreme Court, in applying the four relevant factors in the Fair Use Doctrine, the Court found that 2 Live Crew’s version could be a fair use of the Orbison song and that the commercial nature of the parody does not preclude a finding of fair use.

Although great news for all parodists around, some think that it has only muddied the waters in copyright law, since the Court never concluded definitively that the rap version is fair use, setting no clear precedent.

The lack of a clear precedent has other artists scrambling in all directions. Recently, “Uptown Funk” hit makers, Bruno Mars, Mark Ronson and the four other credited co-writers, added five more writers from the Gap Band, after the group’s publisher, Minder Music filed a claim in YouTube’s content management system. This generosity was presumably motivated by the desire to avoid a lawsuit after the “Blurred Lines” jury decision.

Or, you can sue for declaratory relief, which is the route taken by Pharrell Williams, Robin Thicke and Clifford “T.I.” Harris, Jr. 

In a HuffPost interview, Marvin Gaye’s ex-wife, Jan Gaye disclosed that the “Blurred Lines” lawsuit was in fact initiated by Williams, Thicke and Harris. The trio filed a suit seeking a declaration that their song in no way infringes on Gaye’s “Got to Give it Up,” and that the Gayes have no standing to pursue claims of copyright infringement. The move seems to have backfired. With the jury verdict, Williams and Thicke could actually pay the Gayes over $7 million instead the declaratory judgment they sought. Harris, on the other hand, was not sued.

Will this have a chilling effect on songwriting and musical innovation? Not according to some sources who think that this could actually result in more record sales for Williams and Thicke. On the other hand, others think that this could potentially have far-reaching consequences, encompassing artists and songwriters in Marvin Gaye’s era. Williams and Thicke plan to appeal, so we shall wait and see.

Sapeck-La_Joconde_fumant_la_pipe (wikimedia labeled for reuse)

La Jaconde fumant la pipe by Eugene Bataille (Sapeck), as featured in Le Rire, ed. 1887, by Alexandre Honoré Ernest Coquelin (Coquelin Cadet).

In the meantime, with the diverging perspectives on fair use law and the competing interests in copyright infringement case, it is important to note that appropriation is not a new phenomenon. Appropriation art has been in existence since the early 1900s, with the advent of Cubism, and has been extensively used since the 1980s and later, the advent of the internet. Since then, appropriation has challenged prevailing beliefs about the nature or definition of art itself.

While the same currently holds true, a lot has changed in terms of the tools available to artists and the high stakes involved. As this and other articles show, appropriation art is here to stay. Even a former U.S. president has gone the appropriation artist route.

Ownership of pictures is huge in the graffiti culture. 12oz Senior Editor Spencer Knowles remembers major beefs and arguments on the 12ozProphet forum over folks posting photos by others and not giving them credit. This was especially true in the pre-internet era where it took a lot more time, effort and resources to build up a personal archive (usually housed in a shoebox) of pictures. These pictures were then traded with other writers, sometimes all across the country (this is how 12ozProphet got started as a zine in the early ’90s). In those days before the Internet, these were the ultimate prized possessions – a permanent memento in the ephemeral graffiti landscape.

This notion continues to exist in this digital era. In fact, many prominent 12oz contributors and photographers have protected their photos by including watermarks on their images. Not a bad idea in this day and age, with the technological tools to appropriate readily available at our fingertips.

However, with the lack of a clear precedent, can we truly rely on copyright law to protect our intellectual property? Can we rely on others to use their moral compass and share the wealth, just like Bruno Mars and Mark Ronson? I hope so, on both counts. However, others, like Prince, may not be so inclined. As one commentator noted, fair use is not always “fair,” especially when litigation typically favors the party with more influence and resources, as we have seen in the Cariou v. Prince lawsuit.  

For a concise explanation of fair use and transformative purpose, read this article from Stanford University. If you’d like more information on the fair use statute, click here for the U.S. Copyright Office website. 

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