From the New York Post:
Artist Richard Prince has done album covers for Sonic Youth and A Tribe Called Quest; ranks as a darling of influential collectors such as Marc Jacobs, Peter Brant and Charles Saatchi; and until recently was repped by Larry Gagosian’s namesake gallery. He even collaborated with Louis Vuitton on a line of watercolor-print handbags.
But depending on whom you ask, Prince, 68, is either one of the world’s greatest artists or a stone-cold thief.
Making bank through provocation, the New Yorker has worked to create that division — and has the legal issues to prove it. So much so that his pal, “Spring Breakers” filmmaker Harmony Korine, has said, “For Richard, the lawsuits are also the artwork.”
It’s a good thing, since Prince currently finds himself up to his neck in them.
As put by Christopher Davis, one of the lawyers litigating against him, Prince is “a notorious appropriation artist who has made tens of millions of dollars over the course of his career by reproducing, modifying and preparing derivative works of others, typically without permission . . . ”
The current spate of lawsuits — four of them — are all related to 2014’s “New Portraits” show, originally mounted at Gagosian. Works in the exhibition depicted pictures of regular folk and stars — including Kate Moss and Pamela Anderson — plucked via screenshot from Instagram accounts, printed by Prince on canvases and tweaked with written comments from Prince.
For decades, Prince has mostly been able to sidestep other artists who felt wronged by his usage — free-expression laws afford a wide berth for adapting the visual work of others — but that trend may be reversing. In July, United States District Judge Sidney H. Stein shut down a request for dismissal of a suit from professional photographer Donald Graham, whose work was appropriated by Prince in “New Portraits.”
Graham said that he pursued legal recourse for himself and hopes to set a standard that will aid others. “Copyright is a foundation for photographers to make a living,” he told The Post.
Prince’s lawyer, Joshua Schiller, insisted: “We’re saying that it’s fair use.”
. . . .
Lacking traditional art training — the artist once admitted to Artforum, “I had limited technical skills . . . Actually I had no skills” — Prince’s career began after he moved from his childhood hometown of Boston to Manhattan in 1973 and got a job in the library at Time Inc. There, he snipped and archived magazine pages, foreshadowing his later work.
He started getting modest art-world attention in the late 1970s and early ’80s for pieces such as spot-on reproductions of cigarette ads. In 1983, Prince re-photographed a 1975 shot of a naked 10-year-old Brooke Shields and called it “Spiritual America” (the title was copped from an Alfred Stieglitz photo). It was first shown in the front window of a Lower East Side store rented by Prince for this single purpose.
Garry Gross, the shot’s original photographer, won a $2,000 settlement from Prince and an agreement that he would be credited every time the appropriated version was shown at the Whitney — a promise Prince reneged on in ’92. (After Gross pointed it out, Whitney employees credited him.)
In 2014, Prince’s copy of Gross’ photo sold at auction for $3,973,000.
Link to the rest at the New York Post
PG notes that if you enter fair use vs. derivative works or fair use vs. transformative use into your Google search box, you’ll find a great deal of commentary about the the line between the legal and the illegal under copyright law.
However, you will not find a bright line.
During his brief Google-dive into the topic, PG did find a piece written by someone at the University of Minnesota Libraries that PG thought described the issues clearly (and briefly) in terms a non-lawyer might appreciate.
PG also notes that the the University helpfully makes all content in the Copyright Information section of its website available under a Creative Commons Attribution-NonCommercial License.
Here’s an excerpt:
Fair use is an important part of copyright law that provides some flexibility for users and new creators. At its core, fair use ensures that there are some kinds of uses that do not require permission or payment. But there are no easy rules for fair use – if you want to take advantage of its flexibility, you have to understand its complexities!
Although there are other exceptions to the far-reaching rights of copyright holders, most of those exceptions only apply in very limited circumstances. Fair use is much more flexible, but also much harder to understand and apply. To understand fair use, you need to be familiar with the four statutory factors, and the idea of “transformativeness”. To think through whether a particular use is a fair use, you have to look at these details and other associated issues as a whole. Even then, fair use is unpredictable enough that the best anyone can do is make a well-informed, reasonable guess.
Link to the rest at University of Minnesota Libraries – Copyright Information
The University also provides an interactive tool to assist in “Thinking Through Fair Use.” The Office for Information Technology Policy of the American Library Association also has an online interactive Fair Use Evaluator.
PG cautions that the use of these tools is not a substitute for consulting a competent attorney for close cases. He’ll also caution that fair use is not the only potential legal question. The proper/improper use of a trademark owned by someone else may come into play and the Right of Publicity may be another issue that comes into play.
PG will also note that executives of large entertainment conglomerates, many of which are located in the Los Angeles area, can be aggressive about enforcing their rights under a variety of theories. Think very, very hard before you include a picture of Mickey Mouse in your book or you will learn far more about copyright and trademark law than you know at present. (Here’s a link if you want a preview)
There was an episode of Elementary that had an artist doing this, and I thought it was kind of unbelievable. I didn’t realize this was an actual thing that people do and get away with. That’s just mind-boggling. It would be like one of us literally writing out the full text of Harry Potter, only changing the names and nothing else, and then publishing it as if it were a new book. Or re-publishing Harry Potter with your own annotations in the margins. This goes way beyond fanfic (which usually actually is a new story) or books that heavily borrow themes and character types from other well-known stories. This is really nothing more than you could get with two minutes in Photoshop. The fact that they’re being allowed to present this as new work, much less make money off of it, is staggering.
When it comes to copyright, I think it lasts way longer than it should, and I think that stuff like fanfic and fan art should be given solid legal footing for existing. But when stuff like this “art” is allowed to continue to exist and a guy can make a lucrative living on it, does copyright really mean anything at all? Laws aren’t very good laws if they’re only applied randomly depending on the judge’s mood and how much money the people involved in the lawsuit have.
I have to note that there are good and valid arguments against the constant extension of copyright. The last linked article honestly contains none of them.
The “underground comic” – hack work, actually just about the same case as the subject of the OP.
“Decline in books.” Oh, my. First, “2,000 titles” from Amazon over more than a century is not a sample size that is even close to adequate to make any kind of statistical claim from. Second, even if it were, yes, there is a decline in new titles from 1920 through 1980 (but followed by a huge upswing in the next two decades, after the latest extension). Let me see, here… 1920s – radio and film entering the mass entertainment market. 1930s – uh, little thing called the Great Depression? 1940s – war, with severe rationing of wood pulp, among other things (a very large number of magazines went out of business entirely). 1950s, 1960s, 1970s – television. Color television. Beginning in the 1960s and accelerating in the next few decades, a growing illiterate population. The miracle is the rebound in recent years (which is mainly, in my opinion, thanks to ebooks and opening of competition to the oligopoly of publishers).
Yet another thing – I have read just about all of the original works from which Disney Studios have made animated movies. Between the written work and the movie – well, you can just barely recognize the similarity.
(Oh, thank goodness for Firefox. I was up through “barely” there, and the power went out for a few minutes…)
And then there’s painter Glenn Brown, who many feel copied works by science fiction cover artist Chris Foss and others. Initial museum display of his stuff apparently didn’t even bother to credit Foss, till Foss heard about it and showed up with an art book of his paintings and shoved it in the museum’s face.
https://io9.gizmodo.com/how-a-science-fiction-book-cover-became-a-5-7-million-1497486808
Not sure that I should provide a link to further examples, but here goes
http://glenn-brown.co.uk/artworks/#selected_categories=6&year=1991,2017&selected_mediums=13
Links are fine, SMH, as long as they don’t lead to sites that inject malware into your computer. 🙂
Wow. Fascinating article. I always thought fair use was either for works where there was no monetary gain to be had, like quotes or reproductions in academic articles, or works that had been significantly altered to make it something new. (Andy Warhol comes to mind.) Or just maybe journalistic pieces for which the author was paid, but the reproduction / quote served informative purposes. I had no idea that someone who calls himself an artist was using it to appropriate the works of other artists.
Looking at those images, this guy should get slapped upside the head big time.
A few years ago I was editor of a public technical newsletter for the Fortune 500 corporation I was working for. The legal department assigned an IP lawyer to review everything we published.
He was a likeable and sharp, a real stickler for attributions and permissions. He insisted on getting permission just to CITE published documents, let alone quote them. He would not approve an article for publication that had a quoted two word term without permission from the original coiner.
When I brought up fair use, he explained it this way: our company had deep pockets and was therefore a target for suits that aimed for a settlement rather than a decision. Therefore, he was ultra-cautious. He explained that, in his opinion, almost all the cases where he required us to get permission did not need permission, but could be a pretext for a suit that legal would have to deal with.
In every case, the original authors were happy to grant permission and even wondered why we bothered to ask. I thought it was silly, and a little annoyed because the time and effort to get permissions went on my budget, not his, but good relations with the legal department is nothing to sniff at and I went along. (A wise move for me because he has helped me out with free advice several times after I went out on my own.)
This may seem irrelevant, but I think there is a take-away for independent authors: if you are struggling today, permissions probably are the least of your worries, but you may not struggle forever. If you are lucky enough to earn a deep pocket, you may be subject to nuisance suits that a little extra effort to get permissions would avert.
You might think of it as an investment in your future success.
Absolutely. I have undoubtedly perplexed several people with my requests for permissions. Some didn’t even seem to realize that they had a copyright (such as one that was wondering why I wanted to use their photograph of an 18th Century painting). Patiently explained that while they had no copyright on the painting, they did have a copyright on the photograph.
Eventually they got hold of their legal department – and found out that they could not give permission, as the painting had been withdrawn from their catalog before sale – which their policy was that they could make no further use of the photograph – yep, extra cautious there.
Thank you, PG, for the work on helping educate this modern indie world on copyright. Wonderful!
You’re welcome, Dean.
PG can you tell some of the precedents. I only know one, which was I thik Graham collector and museum guy of rock posters all things grateful dead. And a couple authors who put thumbnails of the vintage posters in their book on whatever. Graham sued. Defendants claimed transformation etc, and judge said, their tiny thumbnails, as I recall, didnt change the value of tye original posters.
are there other cases of precedent in this?
ward churchill the man claiming to be native american who taught at university, took someone else’s artwork, reversed it and printed it as his own and sold it as a pring. It was one of three things he’d done about various that got him fired. He sued, art came to court as sort of a witness of its own against plaintiff. The suit failed.
Here’s a link to a decision involving the violation of copyrights to photos posted on Twitter – http://go.shr.lc/2xjn4lU
Here’s a link to a decision involving the violation of copyrights to an iconic 9/11 photo of a fireman raising a flag by Fox News – http://go.shr.lc/2xiKMir
Thanks PG, I will go look. Appreciate it.
Should be interesting to see which way the courts decide which way to play this.
Too loose and anyone can copy anything and claim it their own.
Too tight and nothing new can be done because it’s all been done before in some other way (and so many current copyrights would have to be tossed out because of prior art.)