MANHATTAN (CN) — “Appropriation artist” Richard Prince has been sued again on copyright claims, for reusing a photographer’s work in his Instagram portrait series.
In a federal lawsuit Wednesday, Eric McNatt accused Prince of reproducing his copyrighted portrait of musician-artist Kim Gordon and using it in a print in Prince’s “New Portrait” series.
The series is inkjet prints on canvas of screenshots Prince uploaded to Instagram, with comments added.
McNatt took his photo of Gordon for Paper Magazine’s 30th Anniversary Issue, at Gordon’s Northampton, Mass. home on July 25, 2014. McNatt says he spent 21 hours working on the photo, including travel time and post-production.
Prince added a comment: “Kool Thang You Make My Heart Sang You Make Everythang Groovy.”
The 1960s rock song “Wild Thing,” by Chip Taylor, was a hit for The Troggs and was frequently performed by Jimi Hendrix. Gordon sang a Sonic Youth song “Kool Thing” on their 1990 major record label record “Goo.”
Prince exhibited a 4-foot-¾-inch by 5-foot-5-¾ inch print of the Instagram screen shot at Blum & Poe’s Tokyo Gallery from around April 3 through May 30, 2015.
McNatt seeks declaratory judgment that nothing about Prince’s work “qualifies as a criticism, comment, news reporting, teaching, scholarship or research (the enumerated illustrative statutory categories of fair use).”
Prince’s attorney responded in a statement: “The complaint fundamentally misunderstands the case law on fair use and how the exemption from the monopoly of rights granted under the copyright statute applies. Mr. Prince has enjoyed a long friendship with Ms. Gordon and admires her as an artist; this work at issue in the case makes fair use of a photograph of Ms. Gordon allegedly taken in the first instance with her permission by a photographer for publication in (Paper Magazine.)”
Gallerists Blum & Poe are named as co-defendants, with publisher Ocula Limited.
Blue & Poe printed a first edition of 1,000 copies of a book, “Richard Prince: New Portraits,” that includes the Gordon portrait on three pages. The book is sold at their New York gallery and their online web store for $200.
Gordon’s band Sonic Youth used a painting from Prince’s nurse series for its 2004 album, “Sonic Nurse.” Gordon also painted the cover for Richard Prince’s 2016 record, “Long Song.”
A different client represented by the same law firm sued Prince earlier this year, over another piece in the “New Portraits” collection.
Schiller called it little more than an attempt to re-litigate the Second Circuit ruling in Cariou v. Prince, which relaxed the standards for an artist’s work to qualify as transformative use.
Schiller said he is trying to get the first case, filed nearly a year ago, dismissed.
“The motion is fully briefed but there is no decision yet. We have argued that the work at issue in that case is fair use, much as we intend to argue here,” he said.
McNatt is represented by Christopher Davis with Cravath, Swaine & Moore.