Instagram-Based Exhibit Raises Copyright Questions

Can someone be guilty of copyright infringement for using your images?

It seems like everyone in New York is talking about artist Richard Prince’s latest exhibit, “New Portraits” – a collection of screenshots of other people’s Instagram photos that Prince added his own comments to before printing them out on large canvasses. Gothamist is reporting that works in the collection are fetching upwards of $100,000; which has a lot of people questioning if it is fair that Prince is making so much money off of something that is in a large part the work of others.  

Prince is famous for appropriating other people’s work, making slight changes, and then exhibiting and selling it as his own, but this time people are really questioning whether he has gone too.  Copyright law protects artists, which the photo-takers arguably are, from infringement, in other words, outright copying. But Prince isn’t just printing out the work of others and selling it as his own, he’s adding commentary to the work.

Whether the minor changes Prince makes are enough to transform the art into something new allowing it to become protected under the doctrine of “fair use,” is unclear.  According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”

In past lawsuits over Prince’s work, the artist has defended his work (and won) by arguing that his style of art is commentary and/or criticism, and is thus fair use. Whether that would apply to these new pieces is debatable (despite the fact that Prince literally commented on the original work).  So, unless one of the original Instagram picture-takers takes Prince to court, and the case makes its way all the way up to the United States Supreme Court, this is likely to remain a grey area of law that varies on a case by case basis. 

The lesson that can be learned from all of this is to think carefully about the content you are posting on the internet. Would you be comfortable with someone else taking what you post, adding to it, and then sharing it with others as their own work? If not, you should probably not be posting it. Or you should be prepared to litigate in order to protect it.

Thomas Lancia regularly represents clients in copyright disputes, and has done so for over twenty years. If you think you are the victim of or if you have been accused of infringement, contact New York City copyright attorney Thomas Lancia at (212) 964-3157 for a consultation today.