Instagram for Sale: Artist Richard Prince’s New Portraits Sparks Controversy

by Kelley Drye & Warren LLP
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In the past week, several news outlets and social media channels have been buzzing about artist Richard Prince’s exhibit New Portraits, which first debuted at the Gagosian Gallery on September 19, 2014 and was reborn with some new additions at Gagosian’s booth at Frieze New York earlier this month.  It is easy to see how New Portraits, while lauded by many as artistically brilliant, also sparked noticeable public outcry, particularly with respect to the manner in which Prince went about creating the pieces.  Prince, who is famous for “re-photographing,” created the images by allegedly trolling the Instagram feeds of unsuspecting, unconsenting users, taking screenshots of users’ posted images, deleting existing comments, inserting his own commentary using the Instagram handle @richardprince4, and blowing up the images on large canvases.  Prince then presented the allegedly appropriated – but altered – images as his own.

It is rumored that all except for one of Prince’s New Portraits sold for a hefty sum, with prices ranging from $90,000 to $2.5 million per piece.

Thus far, we have not seen reports of any formal legal action being brought by the copyright owners or subjects of the images depicted in Prince’s New Portraits.  In fact, following the discovery that her portrait was on display at Frieze New York, one subject declared (on Instagram, of course) that she would not “go after” Prince.  It remains to be seen whether the others will follow suit.

If legal action does follow, there is law in Prince’s favor, particularly within New York and the Second Circuit.  From a copyright perspective, Prince likely has been emboldened by his recent Second Circuit victory in Cariou v. Prince, a case in which he dodged liability for the alleged appropriation of another’s photographs.  In Cariou, which my colleagues discussed extensively in this article, photographer Patrick Cariou filed a lawsuit against Prince, alleging copyright infringement for Prince’s use of Cariou’s photographs of Rastafarians in a series entitled Canal Zone.  The lower court held that Prince’s artwork was not protected as transformative (which would render Prince’s incorporation of Carious photographs permissible as “fair use”) because, among other things, Prince’s work did not “comment on” Cariou’s appropriated photographs. The Second Circuit rejected the lower court’s determination, holding that a work is transformative, and thus immune from a copyright infringement claim, if it has altered the original with “new expression, meaning or message.”  Applying that standard, the Second Circuit reversed the lower court’s holding as to 25 of the works featured in Canal Zone because, among other observations, they featured an “entirely different aesthetic than Cariou’s photographs.”  Prince would likely advance a similar “fair use” argument should he face a copyright infringement claim arising out of New Portraits.

A person depicted in any of the photographs might consider bringing claims for misappropriation of his or her likeness.  In New York, such claims take the form of right of privacy violations, and derive solely from New York Civil Rights Law Sections 50 and 51.  To succeed on a right of privacy claim in New York, a plaintiff must plead and prove (1) the use of his or her name, portrait, picture or voice, (2) “for advertising purposes or for the purposes of trade,” (3) without consent, and (4) within the State of New York.  New York courts previously have held, however, that an artistic use of a person’s photographic image is constitutionally protected free speech, and thus exempted from liability under Sections 50 and 51.  E.g., Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002) (photographic subject’s statutory right of privacy was not violated when art gallery displayed collage incorporating her image as part of exhibition of collage’s maker’s works and subsequently sold merchandise bearing collage; collage was artistic expression protected generally by First Amendment, and use was not for purposes of advertising or trade); Nussenweig v. DiCorcia, 814 N.Y.S. 2d 891 (2006) (use of plaintiff’s image as part of series of photographs derived from candid, un-staged images of people in Times Square did not violate statutory right of privacy under New York law; granting summary judgment in favor of defendants photographer and museum); Simeonov v. Tiegs, 602 N.Y.S.2d 1014 (1993) (sculptor’s creation and subsequent sale of bronze busts of model’s likeness did not violate Sections 50 and 51).

Notably, the result may be different outside of New York.  As both the Hoepker and Nessenweig courts observed, unlike in New York, California courts have held that only sufficiently “transformative” art is entitled to First Amendment protection against right of publicity claims.  E.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) (reproduction of a charcoal drawing of The Three Stooges was a “literal, conventional depiction” that was not sufficiently transformative to warrant First Amendment protection).  As set forth in Comedy III, the central inquiry for determining if a work is “transformative” is whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.

A court may never have the occasion to decide whether Prince and Gagosian’s display and sale of what may be described as other people’s Instragram photos run afoul of either the Copyright Act or state right of publicity statutes.  For those unwilling to volunteer to be the face of Richard Prince’s next exhibit, however, perhaps it is best to set your social media accounts to private.

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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.

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