It seems a month doesn’t go by without another artist being accused of copyright infringement. This time it is the American artist Richard Prince. US art news site Hyperallergic reports that Gagosian Gallery, who represents the artist, has received cease and desist letters accusing Prince of the illegal use of a photograph titled Rastafarian Smoking a Joint, Jamaica shot by the photographer Donald Graham. It is believed that the letters, sent by lawyers on behalf of Graham, forbid the exhibition and distribution of the work in question and any other materials containing unauthorized reproductions of Graham’s work.
Prince used the image in his exhibition ‘New Portraits’ at Gagosian’s Madison Avenue space in September last year. The show consisted of images the artist found from instagram accounts, printed onto large canvases. New York magazine’s art critic Jerry Saltz praised Prince for: ‘taking his paradoxical way of appropriating and representing images to deeper digital and libidinal levels.’
Prince is an appropriation artist – he has made his career out of using images he has found and used again in his own art. He has been in trouble before, however, for failing to credit those who authored the original image. Last year, Prince was forced to settle with the photographer Patrick Cariou. He had been accused violating copyright by using Cariou’s pictures of Rastafarians as the basis for a series of paintings that sold for millions of dollars each in a 2008 Gagosian show.
In 2011 judges decided that Prince had indeed broken the law. The case went to appeal, where the United States Court of Appeals for the Second Circuit decided largely in favor of Prince. According to the New York Times, he successfully managed to argue that his appropriation of images was allowed under the principle of fair-use, which permit limited borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship – especially, as Judge Pierre N. Leval described it in an influential 1990 law review article, if the new thing “adds value to the original” so that society as a whole is culturally enriched by it. In the end, a judge decided that 25 out of the 30 paintings in questions were protected, because they manifested “an entirely different aesthetic” from Cariou’s original pictures.
As Business Insider points out – one potential complication with this latest accusation is that the original instagram post that Prince appears to have taken his image from seems to originate from a different account – @rastajay92 – who didn’t attribute the photograph to Graham, but credits it as a repost from another instagram account…
This is another important example of copyright law being tested by digital developments. Again, it will be up to the courts to decide whether digital images are just another material that artists should be able to use like paint, or whether making money from another person’s creativity should always be forbidden.
See our article on copyright and art here.