Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
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…