A Step Toward Fencing in Aberrant Artistic Appropriation

Posted on: February 19, 2024 by

On 25 January, 2024, the U.S. District Court for the Southern District of New York entered judgements against appropriation artist Richard Prince and his co‑defendants Laurence Gagosian, the Gagosian Gallery and Blum & Poe Gallery. The cases are Graham v. Prince et al (15 cv 10160) and McNatt v. Prince et al (16 cv 08896).

These long-awaited judgements resolve claims for wilful copyright infringement by Richard Prince of photographs by Donald Graham and Eric McNatt. The court dismissed all claims and defenses, including the fair use defense, “with prejudice”. The two judgements also enjoin the defendants from committing any further infringement and separately awarded Graham and McNatt damages in the amount of five times the sales price of Prince’s Instagram‑framed “New Portraits” works derived from Graham’s photograph Rastafarian Smoking a Joint and McNatt’s photograph Kim Gordon 1, respectively. In his decision, Judge Stein found that Prince had wilfully infringed McNatt’s portrait, Kim Gordon 1, and Graham’s portrait, Rastafarian Smoking a Joint.

Rastafarian Smoking a Joint (Donald Graham), Kim Gordon 1 (Eric McNatt)

Having been a longtime observer of appropriation art cases in the United States, my commentary here is not neutral. I applaud Mr Graham and Mr McNatt for foregoing a private settlement in favour of a public judgement. The U.S. fair use doctrine is famous for its salutary flexibility but notorious for its manifest unpredictability. In the wake of the U.S. Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith 598 U.S. ___ (2023), the fair use pendulum is coming back toward a more logical position; one that provides artists and authors some confidence that their original expressions of visual art will be protected by copyright. By contributing to the slim existing jurisprudence on fair use for appropriation art, Mr Graham and Mr McNatt have enormously reinforced original artists’ legal safety net.

The photographers’ attorney in the matter above, David Marriott of law firm Cravath, noted a variety of points, one of which underscores his clients’ ultimate goal in this case: “It would have been a lot more fun to try the cases. But we did not take the cases for sport — we took them to help Donald and Eric vindicate their rights. In this regard, we could not have done any better going to trial … We did not want money to be the focus of these cases, which to us were about higher principles of fairness and respect for law.” I was fortunate to receive some thoughts from the photographers whose works were appropriated. Eric McNatt, the artist whose photograph of Kim Gordon was infringed by Richard Prince noted:

“I’m very happy to have obtained a judgment against Richard Prince and the Blum & Poe gallery on my claims of willful copyright infringement. I am an artist, and the work Prince took — without asking, compensating or even acknowledging me—was the product of my labor and creative vision. The judgment shows fair use is not whatever a famous artist says it is and that having a copyright means something.

This is a victory for working artists everywhere who, like me, rely on copyright for securing their financial future and livelihood.  I refused to let Prince buy me off with a confidential settlement agreement precisely because I wanted a judgment that would move the dial forward for the next artist whose work is stolen without compensation or credit. In the end, that’s exactly what I got.

It wasn’t easy being up against such powerful art world figures.  Over seven long years, it meant everything to have the lawyers at Cravath — the best in the business — on my side.  Together, we were able to make an impact on copyright law that represents a win for the vast majority of artists not named Richard Prince.” (Correspondence with Eric McNatt, 8 Feb, 2024, on file with the author).

To the latter point, in their Motion for Summary Judgement against Mr McNatt, Prince’s attorneys remarked as a preliminary matter that “Richard Prince is one of the most important, internationally recognized contemporary artists.”( Respondent’s Motion for Summary Judgment, at 5 [Oct 5, 2018]). The Second Circuit unfortunately provided an opening for this type of fame-oriented excuse when it decided Cariou v. Prince 714 F.3d 694 (2d Cir. 2013) and cited the names of celebrities who purchase Prince’s work. And an array of academics argue for the same perverse standard. In a 2018 law review article proposing that copyright law is not fit for purpose for the visual arts, Professor Amy Adler noted:

“Visual art has emerged as one of the central battlegrounds for copyright law. Several of the most revered artists of our day have been ensnared in copyright’s web, sometimes repeatedly and with inconsistent results. Indeed, two of the most acclaimed living American artists have become recurrent defendants in court—each has been sued five times. The fundamental purpose of copyright law is to encourage, as a public good, the constitutionally mandated “progress” of the arts. Yet instead of incentivizing artists, copyright law now figures as a constant threat to them. The vast uncertainty of this area has led to an ornate and conflicting body of jurisprudence that chills artistic expression.”

The two artists she refers to as recurrent lawsuit defendants, as noted in her law review (at footnote 92), are Jeff Koons and Richard Prince; her suggestion being that copyright law constitutes a threat to these artists. But she does not take into account other non-appropriation artists, like Mr Graham and Mr McNatt, whose artwork has been coopted, reframed and communicated to the viewing public without attribution, permission or remuneration. It is of course reasonable to assume that some of Koons’ and Prince’s popularity is based on the fact that the art they appropriate is compelling in its own right and that the appropriation artists’ popularity was bolstered directly due to their infringement of other artists’ work. While these appropriation artists may be “revered”, as Professor Adler proposes, they are not above the law – and certainly not all sophisticated visual art patrons would agree with that reverence. Koons’ and Prince’s wealth and fame have, for the past decade, speciously granted them a virtual carte blanche for visually excerpting, quoting and wholesale re-using other artists’ works.

Donald Graham, the other photographer whose work was appropriated, noted:

“As a photographer, I know first-hand the critical importance of copyright law. Most photographers could not survive without the protection of copyright law. When Richard Prince took my photograph and republished it as one of his New Portraits, I had a decision to make. Do I stand by and watch or do I stand up and help protect the copyright law enshrined in the U.S. Constitution? I chose to stand up to some of the most powerful individuals in the art world and won. I hope this significantly moves the needle in the ongoing protection of the U.S. copyright law.” (Email exchange with Donald Graham, 10 Feb, 2024, on file with the author).

In 2005, I had an enlightening academic email exchange with the late John Henry Merryman, Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus, Affiliated Professor in the Department of Art, Emeritus, Stanford University. He noted, and provided authorisation that I quote him: “I have strong views about appropriation art, much (but not all) of which is cheap, feeding off of the creative work of real artists. I have not seen any installation art that I think adds anything significant to art history, although I am sure there is some out there somewhere. Video art has interesting possibilities, and I keep watching for their fulfilment. Parody has a long and impressive track record and clearly deserves fair use protection.” (Email exchange with John Henry Merryman, 3 Nov, 2005, on file with the author). I wholeheartedly agree with Professor Merryman’s position. While appropriation art can be interesting and thought-provoking, as was Marcel Duchamp’s Fountain, much of it is not; it takes much more than it gives.

Fine arts commentators often group Richard Prince, Andy Warhol, and Jeff Koons together with Marcel Duchamp, the latter of whom famously turned a urinal on its side, wrote a pseudonym and date on it, gave it a title and forever changed the discourse and vocabulary for visual arts. Notably, however, this genre-changing artwork did not appropriate another artist’s work; it restyled and reframed a common building apparatus.

Similarly, in his seminal and weighty book Law, Ethics and the Visual Arts – a manuscript I have purchased in several editions – Professor Merryman described the 1976 plight of photographer Morton Beebe and artist Robert Rauschenberg, the latter of whom incorporated Mr Beebe’s work into his own. A lawsuit was filed and settled out of court in 1980, as happens frequently in this space. Professor Merryman, in his academic notes on the case, wrote:

“Should Beebe be flattered at Rauschenberg’s uncredited and unpermitted use of his photograph? Without even a credit, how would one know who is being flattered? If the situation were reversed, and Beebe had sold unauthorized photo reproductions of one of Rauschenberg’s works, would Rauschenberg have been flattered?” (John Henry Merryman and Albert E. Elsen, Law, Ethics and the Visual Arts (4th edn) (Kluwer Law International, 2002) 452.)

I salute Mr Graham and Mr McNatt for standing up for themselves, for their art and for scores of other original artists who now have a jurisprudential touchstone that respects the value of their artistic work. I believe the foundational tenets of copyright law – in any jurisdiction – have been sustained.

Image Credits:

Photographs © Donald Graham and © Eric McNatt. The images are used here under fair dealing for criticism, review and quotation (s. 30 CDPA). If you are a rightholder in these images, please contact us at info@nullial.uk.com and we will happily respect your wishes around image use.