Is this work of art new? Or perhaps a derivation of that one? Wait, are they the same? These are questions we hope to answer here, in order to better understand the difference between art appropriation and transformation of an already-existing copyrighted work. The spotlight is on infamous photographer/painter Richard Prince, commonly referred to as the ‘master of appropriation’.
Richard ‘Prince of appropriation’
Not long ago, Richard Prince was sued by an Instagram model and makeup artist for copyright infringement. Prince was neither shaken nor stirred, as such suits had become a part of his life. This was the fourth suit that filed against him in the recent past, alleging his infringement on copyrighted work.
The sixty-seven year old Prince moved to New York thirty years ago, starting a lifetime of appropriation. Initially, he would photograph advertisements, out of which he would create his own works of art. Most famously, he re-did Marlboro’s cowboy advert by merely removing the logo — the morality of his actions seemed irrelevant to him. Following this phase of re-photographing work, he used humour to attract collectors which was successful for a short period.
Prince’s eureka moment came when he began shifting work between various mediums. His morbid depiction of a nurse subject to the worst possible scenarios including rape, cancer and gunshots led him to depression. This was a prologue to his work with art appropriation, and his work thereafter was predominantly reliant on prior work by prominent artists. Or were his works technically transformative in nature?
Appropriation vs. transformation
These are two separate and distinct concepts with quite different implications. Appropriation involves the use of a pre-existing work with no change whatsoever. For example, if you were to sculpt a replica of a statue made by another sculptor five years earlier, it would be equal to appropriating his work. Transformation requires significant addition or alteration to a work, the final outcome of which would be a new creation.
Copyright law generally favours transformativeness in a secondary work, as it will then be a strong basis for protection through the fair use or fair dealing doctrines. In a previous post, we discussed the fair use doctrine at length, along with the four factor test. The first factor — the purpose and character of the secondary work — relies on the transformative nature of the work.
The case that laid the foundation for this theory of transformativeness was Campbell v. Acuff-Rose Music (1994). The judge stated, “the central purpose of investigation is to check if the new work supersedes the original creation, if it adds something new with a different purpose or character and if it alters the original work with new expression, meaning or meaning i.e., to what extent it is transformative.”
While it is necessary to mimic the original to make a point, the secondary work must be able to justify its borrowing. Lastly, the transformation of a work must be outside the scope of the owner’s derivative rights which include reproducing, translating and adapting a work.
Oddly enough, though the phrase ‘transformative use’ does not actually appear in the US Copyright Act, 1976, transformativeness is an important factor that courts rely on when a fair use dispute arises. Transformative use could be criticizing a work or even making a parody. The idea is that the secondary work should be used in a manner that is dissimilar from the original, and this is the defence that Prince has taken by default in all the four suits filed against him.
Prince — serial appropriator or innovator?
The legal suits began in 2009, when photographer Patrick Cariou dragged Prince to court for having appropriated his photographs in the Canal Zone series. Cariou spent six years in Jamaica taking photographs of the Rastafarians that were later published in his book, Yes Rasta. In 2008, Prince created his Canal Zone series where he used thirty-five of Cariou’s photographs, subjecting them to several modifications such as increasing them in size, blurring/sharpening parts of them, adding colour, and superimposing other photographs to create twenty-eight paintings.
This was finally resolved by the US Court of Appeals for the Second Circuit in 2014 which ruled in Prince’s favour. Although Cariou’s photographs had been used as raw material, Prince had also incorporated other add-ons such as paint and digital effects, which resulted in the final series constituting a new expression that had fundamentally different aesthetics from Cariou’s photographs and was thus, transformative. Both parties finally settled out of court (Cariou v. Prince, 2014).
Inspired by the wonders of Instagram, Prince proceeded to his next project where he took screenshots of posts uploaded by random users after adding cryptic comments beneath the photographs. He went a little extreme, reporting all comments before his own as spam and thereby removing them from his screen. Prince then sent the screenshots to his assistant who ink-jetted them onto six-foot canvases.
New Portraits was a thirty-eight photograph series by Richard Prince, which mainly consisted of scantily clad women. These photographs went up in 2014 at the Gagosian Gallery in New York, and were later sold for $90,000 apiece at the Frieze Art Fair. Soon after, a case was filed by Donald Graham, a photographer based in Los Angeles, alleging copyright infringement. Prince had taken a screenshot of Graham’s Rastafarian Smoking a Cigarette and featured it in his New Portraits series. He had neither obtained prior permission nor given Graham any form of attribution or compensation.
On the subject of lawsuits, this year has brought Prince a double bonanza. In June 2016, London-based photographer, Dennis Morris, slapped Prince with a lawsuit for unlawfully using his photograph of Sex Pistols’ bass player, Sid Vicious, by creating copies of it for his artwork. Morris also alleged that Prince had used his other Sex Pistols photographs in a 2011 exhibition, Covering Pollock, where Prince had painted Jackson Pollock working in his studio and then superimposed Morris’s Sex Pistols photographs onto the paintings.
The second suit was filed by model and make-up artist, Ashley Salazar, after she discovered that her selfie on Instagram had been misappropriated by Prince for the New Portraits series. Her lawsuit claimed that Prince had wrongfully created copies of the photographs without her consent and publicly self-promoted them. Salazar, unlike Graham and Morris, had had her photograph registered earlier this year at the US Copyright Office.
At this point, the common question on everyone’s minds is probably whether, in the above cases, Richard Prince did indeed misappropriate the photographs in question, or whether his works are sufficiently transformative to be considered new works, protectable under the law.
Were Prince’s works derivations or transformations?
We have put forth three cases, all of which involve the alleged misappropriation of photographs. The issue here is not just the photographers’ copyright over their work, but their moral rights as well. Moral rights do not usually come into play when a critique or parody of the original work is made.
Prince’s lawyers insist that his work was only a commentary on social media, sufficiently transformative and thus protected by the fair use doctrine. They go further to say that Prince’s work appeals to a completely different market, and could essentially increase the demand for the original photographs.
These cases present several important questions on fair use. What are the elements needed to make something new? Aside from breaking the law, did Prince create new work? Are Prince’s screenshots of Instagram posts (with his comments on them) transformative works? How will courts interpret transformation that is more conceptual than visual? Where does one draw the line between a work that could be made as a derivation by the owner and a transformation by another?
We can answer a few of these questions to a certain extent but for the rest, we must wait patiently for the judges’ verdicts. Although it isn’t easy to jot down, in a few points, the criteria for a new work, it is certain that the work must possess character, expression and meaning of its own, even while mimicking the original work. As to whether Prince created new work, that depends on whether courts deem his work to have passed the transformative test, and whether it sufficiently re-contextualises the original work even in the absence of many modifications (Bill Graham Archives v. Dorling Kindersley Ltd, 2006).
Prince is not the first to have reinterpreted existing artwork for commercial purposes. Andy Warhol’s Marilyn Diptych and Shepard Fairey’s Hope poster of Barack Obama are other examples of this culture. Ultimately, the only thing one can be certain of is that the more transformative the work is, the less commercialism will weigh against finding the use of the work fair. As for Prince’s fate, we’ll have to keep our eyes and ears open for the court’s final decision.