The Richard Prince circus is back in town. Arm-chair legal analysts rejoice!

Under the big top: ring leader Richard Prince, notorious appropriation artist, whose itchy feet keep him returning to the same dog and pony show every few years. At his side, our first-of-May act, Selena Mooney, aka Missy Suicide, of Suicide Girls fame, whose Instagram photos were among the work Prince appropriated in-whole, without permission, for a new show at the Gagosian gallery. Prince’s images, which consist of screen shots of other people’s Instagram photos enlarged to 4x5 foot inkjet prints with a single banal comment by Prince, have reportedly sold for $90,000.

In response Mooney produced her own prints, identical in every way to Prince’s except for an additional, equally banal comment. She is offering them for peanuts - $90.

The question of day:
Could Richard Prince’s work be considered fair use while at the same time Selena Mooney’s print of Prince’s appropriation, whose primary element is her own photograph, be copyright infringement? It seems crazy, but the fair use provision of copyright is a side show of its own made of contradiction and legal grey areas where judges have almost complete freedom to decide what is and isn’t fair.

Some background

A single sentence in Article 1 of the Constitution empowers Congress to create copyright legislation:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

This clause not only empowers congress to create copyright and patent law, it states explicitly why it must do this: to promote science and art. Courts noticed early on that while copyright does a good job protecting the rights of creators, it can also be used to stop innovation, prevent legitimate expressions like parody and criticism, and interfere with education; in other words, it’s possible for copyright to prevent the very ‘progress of science and useful arts’ is was intended to promote. This is why we have fair use.

Fair use is an attempt to limit copyright’s ability to quash legitimate expression. It is an exception to the monopoly granted to creators which in certain situations allows protected work to be used without the consent of the copyright owner. Although the common law history of fair use is long, it wasn’t codified until 1976 and even then the law simply restated loose judicial practices rather than carving out a precise definition. Because of the nature of fair use and the constantly changing media landscape, a precise, mechanical definition is neither possible nor desirable, leaving both those seeking protection from copyright infringement and those seeking refuge in fair use in an unstable and uncertain legal environment. The statute lists a few non-exclusive examples such as criticism, comment, and news reporting followed by four factors that a court should consider when determining if a use is fair:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors are not exhaustive; courts are free to consider other factors when considering a fair use defense and, since the 1994 landmark Supreme Court case of Campbell v. Acuff Rose Music, courts have focused heavily on whether the use is transformative, or as the court stated: “to what extent it is…altering the original with new expression, meaning, or message.” The discussion of whether or not a use is transformative is normally within the context of factor one. In many cases since Campbell, it has overshadowed the other factors by a large margin often allowing both commercial use and the use of complete works if the use is deemed transformative.

Courtesy Gagosian Gallery, Photo by Rob McKeever

Richard Prince

As an appropriation artist, Richard Prince repurposes the creative work of others and depends heavily on fair use. In 2013 he (more-or-less) won a widely-publicized case against Patrick Cariou whose work he used with slight alteration. Because of the nature of the case, factors 1 and 4 received the most attention from the court. Despite several instances where Prince used Cariou’s photographs in whole, the court discounted factor three and found (citing Bill Graham v Dorling Kindersley) that copying the entire work “is sometimes necessary to make a fair use of the image.” Factor two also received little attention because when considering the nature of the copyrighted work courts usually consider whether the work is mostly creative or mostly factual, with creative work enjoying the most protection. Cariou’s work was creative, a fact not in dispute. In the end, once the court decided Prince’s work was a transformative use of Cariou’s images, little else mattered.

Although his latest work adds practically no alterations to the original images, it is quite possible, if not likely, that a court will see his recontextualization of these Instagram images as also transformative. By taking work out of the ephemeral context of Instagram, displaying it as large prints in a high-end gallery, and asking patrons to view them as fine-art he has followed a long and (now) respected artistic tradition that includes work from Marcel Duchamp, Andy Warhol, Jasper Johns, and Robert Rauschenberg. This change of context may be enough for a court to decide that he has altered the original lnstagram posts with new expression, meaning, or message. Additionally, it is very unlikely that his work has any effect on the potential secondary market value of the Instagram images he used.

What about Selena Mooney’s prints — are these also fair use?

If we look at Mooney’s prints through the same perspective as the Cariou court, the answer is probably no, this is not a transformative use and is therefor not a fair use. Richard Prince’s appropriation, if fair use, establishes its own copyright protection, and if Mooney’s re-appropriation is not fair use, it is copyright infringement. A bizarre, but real possibility.

Although the media has focused attention on Prince’s single comment on each photo and many have concluded that this is the primary vehicle for Prince’s transformation, it is a minor detail compared to the change of context.

While Prince’s use of Mooney’s photos adds new and significant context, Mooney is simply selling copies of Prince’s work with no additional contextual commentary. The prints are the same size and medium — they embodied the same idea. Like Prince, Mooney has added a comment to the print, but this not as significant as many claim. Although the media has focused attention on Prince’s single comment on each photo and many have concluded that this is the primary vehicle for Prince’s transformation, it is a minor detail compared to the change of context.

When determining whether a work is transformative, courts have asked whether a work “merely supersedes” the original or adds something new. Regardless of what you think of Prince’s aesthetic, it is very difficult to argue that he has not added something new by producing this work. As the court noted in the Cariou case:

For a use to be fair, it “must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.”

Prince’s work may meet this standard, but it is unlike that Selena Mooney’s does because her prints seem to be designed for one purpose and one purpose only: to supersede Prince’s work. Because of this a court would likely find that factor one works against a fair use defense for her.

The court in Cariou also looked closely at factor four — the effect of the use on the potential market and value of the original. Prince’s appropriation of Mooney’s images is unlikely to have any effect of the market for this work. If anything, it may improve it. In deciding this factor the Cariou court cited another case involving appropriation, Andrea Blanch v. Jeff Koons:

We have made clear that “our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.”

Our court has concluded that an accused infringer has usurped the market for copyrighted works, including the derivative market, where the infringer’s target audience and the nature of the infringing content is the same as the original.

Practically speaking there is no secondary market for Instagram photos. The works are published on a platform that is free to view and in most cases open to the public. There is nothing for Prince to “usurp.” This isn’t true with Mooney’s prints, however. There is a strong market, willing to pay close to $100K for Prince’s work and Mooney has explicitly set out to undercut this market. It is the very definition of usurping. The court did recognize that Cariou and Prince serve very different strata of the art market, with Prince’s shows boasting a-list celebrities and million dollar sales, while Cariou barely sold anything. This lead them to conclude that Prince’s appropriation was unlikely to harm sales of Cariou’s work. Mooney might make the same argument — that her buyers and Prince’s buyers are separated by such an immense economic chasm that her sales will have little to no impact on the value of his work. She would probably be correct, but her explicit marketing of these prints as cheaper alternatives to Prince’s will make this a difficult argument to swallow.

Both Prince and Mooney seem to be taking a light approach to the absurdity of the situation and neither seems interested in legal action. But the irony that fair use might allow one to be sued for reproducing a work consisting almost entirely of their own work is too rich not to explore and it’s a good example of the difficult, amorphous concept that forms the foundation of fair use. As bystanders it is a shame that neither party is a little more litigious because we all love a good courtroom circus and as a legal funambulist Richard Prince is hard to beat.