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.
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. It’s a difficult line to draw at the best of times, let alone in a case as controversial as this.
Let’s take a look at what’s happened.
Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it! ???? #lifeisstrange #modernart #wannabuyaninstagrampicture
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.
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.
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 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
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.
Much better idea. I started off selling my "family" tweets for $18 at Karma not to long ago. Missy Suicide is smart. pic.twitter.com/3OfjgNBq4a
— Richard Prince (@RichardPrince4) May 28, 2015
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.
— Scott Warmuth (@scottwarmuth1) May 28, 2015
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.
Really fascinated by the hate. At 1st thought it all a joke. But now realize U peeps are fucking SERIOUS! Not sure I'd be all in if it was??
— Richard Prince (@RichardPrince4) May 28, 2015
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, 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. 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