Art And Fair Use Controversy: Case Study

Matthew Cohen

V-220

January 23, 2016

Art & Fair Use Controversy

There has been new controversy over fair use involving a well known appropriation artist Richard Prince and photographer Donald Graham. The photographer is now suing Prince for copyright infringement over his new “Instagram” show, which Graham claims he used one of his own images. In 2001, Prince was accused of copyright infringement in Cariou v. Prince, 714 F. 3d 694 (2013) for his use of Cariou’s photographs that were publish in a book titled “Yes Rasta”. Found in section 17. U.S.C.A 107, fair use of copyrighted materials is allowed and provided when the information is used for educational purposes, criticism and commenting and for news stations when they report. There are

The case discusses the importance of being able to reference from other works to “stimulate activity and progress in the arts”. Throughout their findings, they focus on the fact that the art is transformative in reference to the precedent Campbell vs. Blanch Supreme Court case. Prince added something new to Cariou’s art without knowing or thinking about the photographer’s original intentions. They even explain that since it is more transformative, the commercialistic purposes would differ so much from the original that it would pass the first factor of the fair use law. We also are told that his work would be of different collector’s interest that Cariou’s photographs would have so it passes the fourth factor law as well. In conclusion, since the item is something new and not a substitute of Cariou’s work, it is in fact in fair use.

Graham stated “Mr. Prince’s sole modification to the Instagram post prior to his screen save was the addition of the Appended Text”. Graham even noted in the complaint the substantial amount of copying against in the Cariou case. The second circuit claimed that the transformed Cariou artwork would have no threat to the marketability of the artwork but Graham says his altered art would be effected. In a professional blog, Nicholas O’Donnell commented, “the deciding point may well turn on whether that is somehow transformative, but again, if that is enough, where would one draw the line with posting Instagram images of copyrighted material?”.