Our attention has been drawn yet again, this week, to the vexed question of ‘fair use’ as an exception to copyright protection under US law. When is a new work of art which draws on an existing copyright work acceptable, and when does it overstep the mark?
The saga surrounding well-known appropriation artist Richard Prince has, once again, hit the headlines. It was reported by the Art Newspaper (and in W Magazine) last Friday (26 August) that Prince and his former dealer, Gagosian Gallery, are being sued, this time, by a model and make-up artist, Ashley Salazar. According to the report, Salazar (aka Mynxxi White) claims that Prince wrongfully created copies of a ‘mirror selfie’ photo posted on her Instagram account without her consent and “engaged in acts of affirmative and widespread self-promotion of the copies directed at the public at large”. The work at issue is one of Prince’s ‘New Portraits’ series where he enlarged various Instagram images and added his own comments underneath (a technique explained in detail on the Gagosian website).
He will, we expect, argue that this is fair use, based on the ‘transformative’ quality of his works – an argument which got him out of hot water several years ago when his ‘Canal Zone’ series landed him in the New York courts. The Second Circuit Court then found that he had created new meanings, new expressions and new aesthetics from original photographs by Patrick Cariou. This meant that, at least in respect of 25 of the 30 works at issue, they were sufficiently transformative not to infringe copyright in Cariou’s original photographs.
Prince has certainly never been one to play it safe, and must have been well aware of the controversy the New Portraits series would spark. Was he even consciously exploring where the boundaries of copyright might now lie in the game-changing world of the internet, and particularly social media? It’s interesting that his technique in these New Portraits works is to comment – quite literally – on the original Instagram posts: Will such literal commentary bring him within the fair use exceptions or will there be wider, more fundamental issues at play?
It will be interesting to see how this new claim progresses. Will it make a difference that Salazar is not a professional photographer (like previous claimants such as Cariou and Donald Graham)? And what of the reported sales prices for some of the New Portraits series of $90,000? Certainly a key factor for consideration in any court deliberations, if the case gets that far.
If it does, it will be fascinating to follow judicial thinking on wider issues about rights in material on social media. Perhaps there is a need to couch copyright exceptions in different terms, more nuanced for the digital age. Canada’s specific exception for user-generated content which we discussed a few months ago springs to mind. The world moves so quickly in this area so that even the Fair Use Code of Best Practice published in the US by the College Art Association in early 2015 will probably struggle to keep pace. We won’t hold our breath for a courtroom battle over the latest claim against Richard Prince, but if it does go all the way, it has the makings of a fascinating showdown.