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Artist and photographer Richard Prince kicked off controversy with his New Portraits series. After news broke that Prince was seemingly printing off other people’s Instagram photos and selling them for $90,000, the Internet reacted in the only way it knows how: with emotion Worse Than Hitler: Why Do Flamewars Happen? Worse Than Hitler: Why Do Flamewars Happen? Why are flamewars so common on today's web, and is it really a new phenomenon?  Read More .

While it at first appears to be a clear case of copyright infringement, the situation is a lot more complex. Prince’s argument is that his use of the images falls under fair use What Is Fair Use? A Basic Explanation For Aspiring Creatives [MakeUseOf Explains] What Is Fair Use? A Basic Explanation For Aspiring Creatives [MakeUseOf Explains] Half of the videos I find on YouTube always have some note in the description about how it's totally legal for the creator to use songs from their favorite band as background music. Their reasoning... Read More . It’s a difficult line to draw at the best of times Concerned About Copyright? A Guide For Legally Using Images On The Web Concerned About Copyright? A Guide For Legally Using Images On The Web Copyright is a complex subject. A fair amount of understanding makes it easier. If you're wondering under what circumstances you can use someone else's creative work -- expect some answers here. Read More , let alone in a case as controversial as this.

Let’s take a look at what’s happened.

A Brief History of Richard Prince

Richard Prince has been appropriating other people’s photographs and using them in his art since the late 1970s. One of the founders of the re-photography movement – which involves making a new image from someone else’s pre-existing picture – Prince rose to prominence with his Cowboys series. In these, he rephotographed Marlboro’s iconic Marlboro man ads. Prince has continued to use other people’s work pretty much non-stop since then.

In 2008 it all came to a head when Prince was sued by fellow photographer Patrick Cariou over his use of 30 photographs Cariou had shot in Jamaica. After the initial ruling went against Prince, he appealed and the decision was largely reversed in 2011. The court determined that Prince’s work fell under fair use for 25 of the photographs, and that the remaining five needed to be re-evaluated by a lower court. The case settled out of court in 2014 with no admission of copyright infringement by Prince.

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Prince has made a career pushing boundaries. New Portraits is just his most recent work.

What Prince is Doing

Prince’s New Portraits series features images taken from Instagram. Many of the images are of celebrities, such as Kate Moss, however some are from regular user’s accounts. Despite his history, if he was simply taking the images from Instagram, printing them out and selling them it would be a clear copyright violation. That, however, is not what Prince is doing; instead, he is using the image only as part of the composition. He’s also including the user interface of the Instagram app and adding cryptic comments underneath each image from richardprince1234.

#Regram @richardprince4 made my Instagram into IRL #art ! (hi @richardsonworld ????)

A photo posted by Karley Sciortino (@karleyslutever) on

It’s these additions that Prince’s fair use claim depends on.

In an interview in FStoppers, copyright attorney John Arsenault explains, “When I first saw it, I thought it was cut and dry. But then I looked again and saw what was captured specifically, and the commentary under it, then it creates a question. A silly question, especially given that he has sold these for money, but there you go.”

“His argument is hinged around the text/commentary attached to it – so he says it has social value so he says he can do that”, Arsenault explains to FStopper’s Nino Batista, “I personally don’t think that that fits in the spirit of copyright law, but, I think his position is that he is transforming the original work.”

He continues:

“He is taking an online work, reprinting more than just the photograph. If he downloaded an image, and printed it, as is, and sold it – that’s clearly copyright infringement. But if you take the Instagram [screen shot] with some of the commentary below it, then you have an argument that it has social value.” -Nino Batista

Once again, Prince is pushing the limits of copyright law to see what’s permitted.

The Subject’s Reaction

The reaction from the subjects of Prince’s work have been mixed.

Some of the images were taken from alternative pinup site Suicide Girls‘s Instagram account. Missy Suicide, one of the founders of the site, said that the “theft of the images … feels like such a violation by someone who doesn’t get it” in an interview on the Creators Project.

Everyone has been asking me what I thought about famous controversial artist Richard Prince taking a series of SuicideGirls Instagram posts and printing them out and selling them at a recent gallery show at the Gagosian Gallery of Beverly Hills for $90,000 a piece. My first thought was I don’t know anyone who can spend $90,000 on anything other than a house. Maybe I know a few people who can spend it on a car. As to the copyright issue? If I had a nickel for every time someone used our images without our permission in a commercial endeavor I’d be able to spend $90,000 on art. I was once really annoyed by Forever 21 selling shirts with our slightly altered images on them, but an Artist? Richard Prince is an artist and he found the images our girls and we publish on Instagram as representative of something worth commenting on, part of the zeitgeist, I guess? Thanks Richard! Do we have Mr. Prince’s permission to sell these prints? We have the same permission from him that he had from us. ;) I’m just bummed that his art is out of reach for people like me and the people portrayed in the art he is selling. So we at SuicideGirls are going to sell the exact same prints people payed $90,000 for $90 each. I hope you love them. Beautiful Art, 99.9% off the original price. ;) https://suicidegirls.com/shop/instagram-art-1/ https://suicidegirls.com/shop/instagram-art-2/ https://suicidegirls.com/shop/instagram-art-3/ https://suicidegirls.com/shop/instagram-art-4/ https://suicidegirls.com/shop/instagram-art-5/ Urban art publisher Eyes On Walls (EyesOnWalls.com) is supporting the project by fulfilling the large canvas reproductions at cost. We will be donating the profits from sales to EFF.org. xoxo Missy Check out Missy's AMA happening right now! http://redd.it/37hzrn

A photo posted by SuicideGirls ???? (@suicidegirls) on

In response, Suicide Girls have further modified Prince’s work and are selling the prints for $90 with all profits going to the Electronic Frontiers Foundation — a choice of charity I find odd given their stance on copyright law enforcement.

Rather than get upset, Prince has applauded the idea.

An article on Business Insider raises an interesting issue: many of the subjects of the images aren’t actually the copyright holders. While interviewing Karley Sciortino and Anna Collins, both of whom feature in the New Portraits series, they discovered that as neither had actually taken the photograph — they held no copyright to the image Prince used.

Sciortino and Collins had different takes on their inclusion in the series. Sciortino felt it was “an honor to be incorporated in a piece”, while to Collins, the money was an issue. She explained, “I’m extremely broke, and here is a middle-aged white man making a huge profit off of my image…. I could use that money for my tuition.”

Business Insider, in an aside, also raises another twist to the tale. The image of Kate Moss that Prince took from Instagram had itself been taken from another website. I suspect that this kind of complicated web of copyright and fair use is what Prince is trying to challenge with his work.

Prince seems determined to react as unpredictably as possible. One subject simply asked him if she could have the print featuring her and he obliged.

If Prince’s goal was to spark a conversation, it seems he’s succeeded.

The Critical Reception

The New Portraits have been well received by the art press. Writing in Vulture, art critic Jerry Saltz describes Prince’s work as “genius trolling” — a fairly apt description to my mind. In the article, Saltz dissects the furore against Price neatly.

“With these new works, the protests against him center on three things”, Saltz writes, “First, he’s making money from these things, a lot of money, and given how easy they seem to be to make, that seems like theft, or at least a con; second, he’s using other people’s Instagram feeds without their permission; and most prevalently, he’s a lech for looking at and making art with pictures of young girls.”

Point by point Saltz dismisses these arguments. As much as he hates the “current bifurcated top-versus-everyone-else system” of art, Saltz recognises that Prince has earned his success and the financial rewards it brings.

As for the theft accusation, he explains, “By now, we have to agree that images — even digital ones — are materials, and artists use materials to do what they do.” He continues, arguing that, “too many artists are too wed to woefully outmoded copyright notions – laws that go against them in almost every case.”

Finally, Saltz dismisses the charges of lechery. “For his entire career, this artist has culled and exposed underbellies and subcultures, making whole almost-invisible worlds visible… Now that the world has gone digital, these previously outsider factions are closer to the mainstream and always only a click away. By using Instagram and tapping into these self-revealing, self-documenting subgroups, Prince has eliminated the mediating middleman of the professional or fashion photographer, the advertiser, the packager.”

What Do You Think?

Personally, I really like what Prince has done with his New Portraits.

The more I’ve dug into the issue for this article, the more I’ve come to appreciate how he’s raising questions about copyright. My take, however, may well be different to yours. I’m from the streaming generation The End of Ownership: Netflix, Spotify, and The Streaming Generation The End of Ownership: Netflix, Spotify, and The Streaming Generation Read More , and that colors my opinion on issues like this.

If you’d like to avoid accidentally creating such controversies yourself, there are plenty of sites with high quality public domain images 6 Free Websites For Public Domain Images & Free Stock Photos 6 Free Websites For Public Domain Images & Free Stock Photos Public Domain refers to material that is 'publicly available' and not covered by intellectual property or copyrights. In today's media, where visual art is abundant, there is a high demand for images, for example for... Read More . But I’d also like to know what you think.

The point of art is to create conversations. So please, tell us in the comments what you make of Prince’s New Portraits. If you love them, hate them, or feel entirely indifferent, let us know. 

Image Credits: man looking at wall via Shutterstock

  1. Jane Harmon
    December 2, 2015 at 10:22 pm

    Harry- can you please let me know an email I can reach you at?

  2. Jane Harmon
    December 2, 2015 at 10:22 pm

    Can you please let me know an email I can reach you at?

  3. Leah C
    June 4, 2015 at 8:43 pm

    BTW, the really stupid people are the ones paying 90K for these pictures.

    • Harry Guinness
      June 5, 2015 at 8:14 pm

      And the people paying 90k are being pretty damn smart. The value of these is probably gonna go up especially given the drama!

  4. Leah C
    June 4, 2015 at 5:40 pm

    That is true, but simply printing someone else's work out does not equal art, simple or not. I do also think it infringes on copyright especially when you get into using images that people have already taken from other websites.

    • Leah C
      June 4, 2015 at 5:41 pm

      just delete this comment. It was supposed to be a reply to Harry Guinness

    • Harry Guinness
      June 4, 2015 at 5:44 pm

      But Prince is not simply printing out someone else's work. Each image is chosen very very deliberately, as are the comments that follow. The art is in which images are chosen and how they are represented.

      And I think a court would find his work falls under fair use.

  5. Leah C
    June 4, 2015 at 5:32 pm

    This is a lazy way of art. All he does is add a comment and basically print out someone else's image. He has done nothing in terms of art. It is crazy that someone would pay money for that crap.

    • Harry Guinness
      June 4, 2015 at 5:39 pm

      Art isn't about the effort of creation though. There's a lot more to it than that. Some of the best art is the simplest.

      • Leah C
        June 4, 2015 at 5:40 pm

        That is true, but simply printing someone else’s work out does not equal art, simple or not. I do also think it infringes on copyright especially when you get into using images that people have already taken from other websites.

      • Leah C
        June 4, 2015 at 5:53 pm

        Maybe a court would find it fair use, but that doesn't mean I have to like it. I just don't find this very artistic. He hasn't, in my mind, created anything himself. Would they call it fair use if he took a picture that someone else took from another website that would be technically be called copyright infringement? Just because he's using this as art doesn't take that away.

        • Harry Guinness
          June 4, 2015 at 6:06 pm

          I'd disagree. Just because he is using other people's work in his own doesn't mean he hasn't created anything. The paint maker isn't responsible for the Mona Lisa. Appropriated images are just another material that artists have used since the 70s.

          As for someone else stealing it and Prince using it from Instagram? Nope he'd still be covered by fair use I suspect. The original thief isn't because they've not modified it in anyway, nor given it any form of social value.

        • Leah C
          June 4, 2015 at 8:35 pm

          I'm thinking you don't know much about copyright law. Whatever.

          Comparing what Prince has done to someone making paint? It's not the same thing. The paintmaker is comparable to the person who made the ink or paint or whatever he used to print out the images.

          Prince is not an artist. He is a thief. He didn't take those images. He stole those images. I'm not allowed to make money off a graphic I make if I take someone else's image and modify it. It's pretty much what he did here except there's no real modification. The border and comments (minus his own) were provided for him.

        • Harry Guinness
          June 5, 2015 at 8:09 pm

          Nope, pretty familiar with them working as a photographer.

          You've entirely missed my point. Since the 60s cultural artifacts *including images* are seen as another material, like paint, from which art can be created. Andy Warhol's work is perhaps the most famous.

          And Prince is undeniably an artist. He can also be a thief, but he is definitely an artist. The fact we're having this conversation is proof enough of that.

          And yes you are depending upon what terms you take the graphic and what modifications you make. The border and comments are other cultural artifacts he's including.

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