Last month we reported that Graham had filed a complaint against Prince, his representative Gagosian Gallery and gallery owner Larry Gagosian. Graham alleged that Prince infringed his copyright by creating an Instagram-style screenprint based on Graham’s photograph ‘Rastafarian Smoking a Joint, Jamaica’ (1997) and exhibiting it as part of his ‘New Portraits’ series at the Gagosian Gallery in 2014.
Graham was so angered by Prince’s uncredited appropriation of his work that he took to Instagram and posted the comment: ‘How to credit a work: “Rastafarian Smoking a Joint, Jamaica” © (1997) Donald Graham. #PrinceofAppropriation.’
Undeterred, Prince has hit back with this latest motion, which argues that his work is “transformative” and therefore does not violate Graham’s intellectual property rights. On his website, Prince refers to his technique as using “electronic scissors”:
“There is something different, transformative, about looking thru the lens onto a flat surface that has another photograph in front of the lens. The transfer has always been hard to describe… It’s not mechanical, it’s not copying and it’s not new”.
To dismiss the Graham case, Prince is relying on the earlier ruling of Prince v Cariou made by an appellate court in 2013. The photographer Patrick Cariou sued Prince for infringing copyright in his photographs, which Prince used in a series of collaged paintings entitled ‘Canal Zone’.
Finding in Prince’s favour, the court held he lawfully reproduced Cariou’s work according to the fair use principle. Prince’s lawyers refer to the latest suit against the artist as “an attempt to essentially re-litigate Cariou” and that the same exception for transformative work should be applied to Prince’s treatment of Graham’s photograph. They also argue that Prince’s work would not impact on the market for Graham’s work, which was another fair use factor considered in the Cariou judgment.
The outcome of Prince’s motion is pending.