A Legal Blog by Aaron | Sanders, PLLC

Richard Prince Is a Jerkface, but Don’t Blame Instagram

If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in” the thing you posted.

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap…

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

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Is it Fair Use? (Appellate Edition): Transformers in the Art Gallery

Parody ≠ Transformative Use

I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:

Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation

So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.

Is his Case More Appealing Than his “Art”?

Let’s play again, but at the…


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I Know Fair Use When I See It: A Copyright Complex

Welcome to the Game We’re Calling, “Is It Fair Use?”

I’m starting a new occasional series called, “Is it Fair Use?” where I set out the facts from an actual copyright or trademark decision involving fair use, and you get to guess how the court ruled.*

*  This idea is completely ripped off from one of my absolute favorite law blogs, The TTABlog.  It’s highly specialized and wonky, but it is up-do-date, erudite, witty and consistent.

For my inaugural “Is it Fair Use?” I’m going back to a fairly old case (March of this year) that has been in the news again because its interlocutory appeal has been approved by the Second Circuit (for obscure procedural reasons, this had been in doubt).* Some of you will recognize it immediately, even though I’ll suppress some of the more recognizable facts. Don’t spoil it for the others! Even so, it’s hard to resist starting with this case because everyone thought this was an easy, slam-dunk, open-and-shut fair-use case, but no one agreed on what the easy, slam-dunk, open-and-shut ruling should have been.

* This constitutes a perfectly good reason to dredge up an old decision. Really.

The defendant is an artist.  He…

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