Fake News, Fake Art?  Richard Prince Disavows Work Depicting Ivanka Trump

by Sullivan & Worcester

There has been much discussion about the impact of the Presidential election on the art market, amidst much generalized anxiety about "fake news."  What about "fake art?"  Never one to be behind the curve, artist Richard Prince has stepped into the spotlight (to the extent he left).  Declaring that one of his controversial “New Portraits” works of Instagram posts of others that was sold to Ivanka Trump is “fake” and that he “denounce[s]” it, Prince raises interesting questions about what the legal ramifications of such a repudiation might be.  In this instance he has apparently refunded Ms. Trump’s money, but following on last year’s surprising Peter Doig trial (surprising that it got to trial, not that Mr. Doig won), a hypothetical artist making such a declaration might have some vulnerability under both common law, if not under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (VARA)

We have discussed Prince’s “New Portrait” series before, in which he reproduces an Instagram post by someone other than himself, and often adds a satirical comment below.  Prince has been sued by multiple plaintiffs alleging copyright violations, which Prince has countered with the defense of fair use following on his victory in the prominent case by Patrick Cariou.  We will not re-explore the fair use ramifications of Prince's art here, but it is a useful reminder that Prince is a skillful provocateur of expectations and norms, so his insertion into the topic of a divisive political election should not be a surprise.

As reported in various outlets, Prince made a work that consisted of an Instagram post by Ms. Trump with two hairdressers, which she then apparently bought herself as part of the “New Portraits” series.  At the time, Prince noted that he had not been commissioned or asked by Ms. Trump to make the work, but rather “I found an image of her that looked like it was made up. It looked like the kind of thing I was interested in. . . .  I don’t care who she is. I care more about who I think she is.”

On January 11, 2017, however, Prince posted this to Twitter:

Prince Tweet.png

Thereafter in clarification, he posted “Not a prank. It was sold to IvankaTrump & I was paid 36k on 11/14/2014. The money has been returned. SheNowOwnsAfake” and “Redacting Ivanka's portrait was an honest choice between right and wrong. Right is art. Wrong is no art. The Trumps are no art.”  Ms. Trump has apparently declined to comment.

If, as has been reported, Prince rescinded the sale and refunded the purchase price, then the buyer would probably have little additional recourse.  But what if he hadn’t?  Or if the original sale had not been as objectively verifiable in the market?  Then a buyer might well be in a position to say that an artist had diminished the value of the artwork, value that is not necessarily limited to the purchase price.  Recall the Doig trial.  The plaintiff in that case got all the way to trial by alleging that Doig’s disavowal of the work in question was wrong on a theory of tortious interference, that is, the allegation that Doig was improperly interfering with the plaintiff’s economic interactions with others by denying the work’s authenticity.  While I found it surprising that it made it to trial, particularly because an element of that claim is improper motive (not just the fact of interference/denial of authenticity), consider a hypothetical similar to what is happening here. 

Imagine an artist who made a particular work of art.  It is sold to a buyer in a non-public transaction, and the buyer retains the work in her home.  When the buyer goes to sell it many years later (in particular after the artist has become more famous, and more expensive), the artist categorically denies it is his, and cites the buyer’s political beliefs as justification.  Even if he returns the price, the work may by then be worth much more than she paid, and she may not be able to sell it as authentic depending on the phrasing of the denial.  Could she then sue the artist for tortious interference?  It seems that if Doig had to defend himself all the way to trial on the strength of allegations that were pretty thin, such a buyer might make some headway against an artist who was making an incorrect statement of fact.  To be clear once again, this is purely hypothetical, but perhaps not far out of the realm of possibility.  Art Market Monitor and others considered the potential impact on value that all this has, which is an economic rather than legal analysis, but would certainly inform the parties’ rights.

This is not entirely far-fetched, by the way.  In addition to the Prince disavowal here, Gerhard Richter started implying a few years ago that he no longer considered his early works to be “his.”  

Lastly, the always-astute Georgina Adam queried in response to the recent Prince story “This is interesting. If Prince can disavow a work under VARA , this would destroy its value I suppose...”  Having thought about it, I think Prince’s VARA rights in this instances are limited.  VARA’s right of attribution states that the artist has the right “to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”  Famously, Cady Noland successfully enjoined the sale of a work as a “Cady Noland” after it had been damaged to her dissatisfaction.  I do not think it would apply here.  First, the Prince work has not been “disort[ed], mutilate[ed], or other[wise] [] modif[ied].”  Instead, it has been purchased by someone whom the artist wishes to criticize, which is certainly his right.  Second, given that the statutory construction would be a stretch as applied to Prince, it must also be remembered that judges have strained to avoid strict applications of VARA, and it is hard to imagine that a politically-charged claim would be the instance in which that changes.  One never knows, however.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sullivan & Worcester | Attorney Advertising

Written by:

Sullivan & Worcester

Sullivan & Worcester on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.