Appropriation Artist Hasn’t Proved Case to Federal Judge

MANHATTAN (CN) — The first time appropriation artist Richard Prince used a photographer’s image of a Rastafarian man in a work of art, he achieved a landmark federal appellate ruling extending fair-use protections. But Prince’s second riff on the same theme might leave him feeling burned.

U.S. District Judge Sidney Stein on Tuesday gave a green light to Los Angeles-based photographer Donald Graham’s copyright lawsuit over his photograph “Rastafarian Smoking a Joint.”

Prince created an untitled work by blowing up an Instagram post of Graham’s image, unaltered except for comments left by users and the appropriation artists, below the post.

“In this case, because Prince’s ‘Untitled’ does not make any substantial aesthetic alterations to Graham’s ‘Rastafarian Smoking a Joint,’ a simple side-by-side comparison of the two works is insufficient to show that Prince made transformative use of Graham’s original as a matter of law,” Stein wrote in a 33-page opinion and order.

The influential Gagosian Gallery exhibited Prince’s “Untitled” in the series “New Portraits” in 2015, with other large-scale Instagram posts of Goth pin-ups from the softcore porn site Suicide Girls.

Graham sued Prince, the gallery and its owner Larry Gagosian last year, inspiring follow-up lawsuits from others depicted in the exhibition.

Stein suggested that the images speak for themselves.

“The reader of this opinion – perhaps a reasonable observer – is invited to perform his or her own side-by-side comparison of Graham’s ‘Rastafarian Smoking a Joint’ and Prince’s ‘Untitled,’” he wrote. “That observer must conclude that Prince’s ‘Untitled’ does not so ‘heavily obscure and alter’ Graham’s ‘Rastafarian Smoking a Joint’ that it renders the original photograph ‘barely recognizable.’”

Prince’s latest courtroom wrangling evokes a feeling of déjà vu over his previous fight involving Patrick Cariou’s work “Yes, Rasta.”

In late 2007, the Gagosian Gallery presented Prince’s series based on Cariou’s out-of-print book documenting the photographer’s decade-long trip to Jamaica’s remote mountains and villages.

Prince altered those photographs in various ways: superimposing gas masks, guitars and painted blotches over the Rastas without permission, and altering the exposure of the prints.

After Cariou sued, the New York-based Second Circuit issued a landmark ruling relaxing standards for transformative use in 2013. The artists reached a settlement a year later.

But Judge Stein said that Prince will have to turn over evidence proving his work is original.

“Given Prince’s use of essentially the entirety of Graham’s photograph, defendants will not be able to establish that ‘Untitled’ is a transformative work without substantial evidentiary support,” the ruling states. “This evidence may include art criticism, such as the articles accompanying defendants’ briefing, which the court may not consider in the context of this motion.”

Prince’s artistic purpose may not be enough to avoid liability.

“In addition, although an artist’s stated intent is ‘not dispositive’ in determining whether his or her work is transformative, it is also not irrelevant,” Stein wrote.

Prince’s attorneys said they were confident they could prove fair use in discovery.

“We continue to believe that ‘Untitled’ is protected as fair use and look forward to the opportunity to show with the aid of facts in discovery why a reasonable observer may conclude Prince’s work is transformative consistent with the Supreme Court’s decision in Campbell,” the attorneys said in a statement.

Also known as the “Pretty Woman” case, the Campbell ruling found that the rap group 2 Live Crew’s parody qualified as fair use.

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