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Appropriation art meets Instagram: Is copyright law ready?

Will the original users be upset? They might be after they hear that Prince’s works sold for $90,000 each. Can they successfully sue him? Probably not.
People in crowd take photos on their cell phones at night. (Photo by GS/Gallery Stock)
People in crowd take photos on their cell phones at night.

Fresh off a victory in federal court, Richard Prince has decided to push his artwork to a new frontier: Instagram.

Prince is an appropriation artist; he takes other people’s works and repurposes them in new, slightly different ways. The field of appropriation art dates back to Marcel Duchamp’s Fountain, a signed and dated urinal laid flat on the ground, and it includes Sherrie Levine’s re-photographing of famous Walker Evans images. An appellate court in New York recently declared that Prince’s modifications to photographs taken by Patrick Cariou were fair use, insulating Prince from liability for copyright infringement.

In his new work, Prince isn’t borrowing from established artists—he may be borrowing from you. His new show in New York’s Frieze Art Fair includes blown up images taken (I assume, without authorization) from other people’s Instagram accounts. According to The Washington Post, Prince left the images and the usernames intact, but he substituted his own, somewhat unusual comments beneath the images.

Will the original Instagram users be upset? They might be after they hear that Prince’s works sold for $90,000 each. Will they successfully be able to sue him? Probably not.

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Again, the reason why will be the fair use doctrine. Copyright law gives people rights to encourage creativity. Although copying someone else’s creative work without paying for it is often against the law, certain kinds of copying isn’t. The fair use doctrine protects some kinds of copying when doing so is beneficial to society. For example, a reviewer can reproduce a portion of a book or movie in order to criticize it.

Additionally, copyright law allows people to copy others’ work when the new work is sufficiently “transformative” of the original. When the new work adds new meaning to the original and places it in a different context, courts will tend to treat it as a fair use. 

This is what the court ruled in Cariou’s lawsuit against Prince, and it is what a court would likely rule if one of the Instagram users sued Prince.

Prince would likely argue that his use of the photographs is different from use by the original authors. The Instagram users intended the pictures to display aspects of their lives, their new shoes, or what they had for dinner. Prince, however, would claim that he is using the photos for very different reasons. Perhaps he is commenting on the photos themselves through his new “comments.” Or perhaps he is using them to express something about modern society. Whatever it is, you can be sure that he isn’t trying to tell people how cute someone else’s baby is.

Prince probably stands on even firmer fair use ground with the Instagram pictures than he did with Cariou. In that case, Cariou was a professional artist who made money off of his work. Here, from what I can tell, the Instagram users are not professionals. They never intended to make any money off of their creations, and so they have not experienced the kind of harm, i.e. loss of livelihood, that copyright law cares about.

Copyright law isn’t about hurt feelings. And it isn’t about fairness, either. Copyright law doesn’t care that Prince just made hundreds of thousands of dollars by using others people’s images.

People are not going to stop using Instagram because appropriation artists reuse their photos in avant garde festivals. Therefore, copyright law isn’t going to stop the appropriation artists.

Christopher Buccafusco is a professor at IIT Chicago-Kent College of Law and co-director of the Center for Empirical Studies of Intellectual Property. In the fall, he will join the faculty of Cardozo Law School in New York.