Richard Prince is either on the very edge of fair use or is engaging in blatant copyright infringement. Unlike most however, Prince has been down this road before; accused of infringement and a defense based entirely on fair use. What is different about Prince, and what might explain the sheer boldness of his recent project, is the last time Prince was accused of copyright infringement, he ultimately prevailed on appeal to the 2nd Circuit.
Prince is a practitioner of what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes third-party images and photographs, which are often the subject of copyright.
In 2008, Prince created thirty works of art that comprised a series he called Canal Zone. The works in Canal Zone made use of a number of images from Patrick Cariou’s photography book on Rastafarians in Jamaica called “Yes Rasta”. In the Canal Zone works, Prince had enlarged, cut up, and painted over Cariou’s images, as well as placed them with other images. While not directly a factor in the Court’s infringement analysis but certainly a motivating factor behind Cariou’s lawsuit, while Cariou had little commercial success with his book, Yes Rasta, Prince sold eight of the Canal Zone works for a total of over $10 million.
Cariou initially won on summary judgment at the district court level, and obtained a permanent injunction compelling Prince to turn over all of the unsold Canal Zone works for sale, disposal or destruction. In its ruling, the United States District Court for the Southern District of New York held that Prince’s works did not qualify as a “fair use” because, among other things, they were not transformative in that they did not “comment on” Cariou’s photographs or the subjects of the photographs, and Prince himself did not articulate any transformative intent in connection with the use of the images.
On appeal, Prince challenged the lower court’s analysis of the first fair use factor, the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative”. A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc., “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
For most copyright practitioners, criticism and commentary have been the litmus test for determining transformativeness. On appeal, the Second Circuit reversed, rejecting the District Court’s requirement of “commentary” and that the artist have a “transformative intent” in creating the work. According to the Second Circuit, commentary on the original work was not a necessary component of transformative use, and an artist was not required to articulate a transformative intent for one to be found. Instead, the focus, according to the Second Circuit, is how the works could reasonably be perceived. Engaging in such analysis, the Court stated:
“Here, our observation of Prince’s artworks themselves convinces us of the transformative nature of all but five. . . [T]wenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.”
So, what is Richard Prince up to now? He is selling other people’s’ Instagram images for $90k! Prince took a number of beautiful Instagram pictures and didn’t make any changes to them other than adding comments underneath. He then printed the images on canvas and last fall sold a handful for about $90k. The only backlash thus far is critical commentary in articles like this one, and one original photographer is offering prints of their image at a significantly reduced price. But so far, no one has filed a lawsuit.
Does Prince’s curation and minimal modifications (adding comments below the imagery) constitute fair use? Does his work manifest an entirely different aesthetic from the original Instagram images? Critics have commented that the commentary added by Prince is “odd” and “creepy”. Is this enough to change the very nature of the original photographs like those in Cariou’s book?
 As to the remaining five, the Court stated that “although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we cannot say with certainty at this point whether those artworks present a ‘new expression, meaning or message’” and sent the determination of fair use back to the District Court.