Proof Is in the Pixels for Appropriation Artist Richard Prince

MANHATTAN (CN) — Fighting copyright claims over Richard Prince’s “New Portraits” series consisting of other people’s Instagram posts, lawyers for the controversial appropriation artist argued in court Tuesday that size matters.

The federal case pitting Prince against photographers Donald Graham and Eric McNatt has been brewing for years, getting underway this afternoon in a Skype videoconference — as has become typical for court proceedings during the coronavirus pandemic.

“Most people, when you’re looking at Instagram, you look at it on a phone, on a very small screen,” Prince’s attorney Ian Ballon told U.S. District Judge Sidney Stein. “It’s called ‘New Portraits’ because it shows the difference with traditional portraiture.

“And what Prince has done is he’s blown up to absurd proportion — up to 40 times larger than the way that people look at social media — and put them in an art gallery. And it’s a way to confront the new portraiture.”

Prince exhibited “Portrait of Rastajay92,” a blown-up Graham print of a Rastafarian smoking a joint, at New York’s Gagosian Gallery in fall 2014. During that same period, Prince’s own Instagram account included McNatt’s photograph of musician-artist Kim Gordon, with no credit to McNatt or to Paper Magazine, which had published the image for its 30^th Anniversary issue that July. 

Besides blowing them up in size, Prince’s only modifications to the images were in comments underneath the pictures comprised of emojis and eccentric captions.

At Tuesday’s hearing, McNatt’s attorney called Prince’s so-called contributions nothing more than “gobbledygook nonsensical comments.”

“Notwithstanding these additions, plaintiff’s unobstructed, unaltered photographs are the dominant images in the two Prince works,” said Caitlin Fitzpatrick, with the firm Cravath, Swaine & Moore.

Prince’s lawyer cast the images meanwhile as commentary on the narcissism of modern social media, saying the series forces the audience to confront the modern culture surrounding Instagram in a way that neither original does.

“Traditional portraiture, of which these two original photographs are, involves someone taking a staged photo,” said Ballon, who is with the firm Greenberg Traurig. “Instagram and social media involve selfie culture. It’s a certain kind of pop culture and narcissism.

“More importantly, it has a different purpose and a different meaning. Prince’s purpose was to comment on social media, to satirize how people communicate today.”

Arguing that Prince’s works are transformative and thus protected under the fair-use provisions of copyright law, Prince has moved for summary judgment in both the Graham and McNatt cases.

Fitzpatrick told the court Tuesday, however, that Prince’s own deposition testimony belie his argument that the commentary is transformative.  

“I wanted to have fun, I wanted to make people feel good, I wanted to make art,” Fitzpatrick said, reciting the artist’s explanation of his intent for the works.  

In Prince’s post “Portrait of Kim Gordon,” he added in the comments: “Kool Thang You Make My Heart Sang You Make Everythang Groovy” — a sort of portmanteau referencing the 1960s garage-rock hit “Wild Thing,” made popular by the Troggs, and Gordon’s own song “Kool Thing” from Sonic Youth’s 1990 major label debut album “Goo.”

Ballon asserted that Prince’s allusions in the comments to pop songs, and his friendship with Gordon, are typical of social-media culture on Instagram. “It’s all self-referential, it’s all about pop culture,” he said. 

Gordon’s long-running downtown Manhattan art-rock band Sonic Youth often used modern artists’ work for the group’s album covers, taking a painting from Prince’s nurse series for its 2004 album, “Sonic Nurse.” Gordon, who is also a visual artist, painted the cover for Richard Prince’s 2016 record, “Long Song.”

Ballon also argued that Prince’s works should be protected because they do not harm the market for Graham or McNatt’s output — another factor in fair use.

“There is no question that these are not substitutes,” he said Tuesday. “The price points are completely different. The sales channels are different, they’re marketed in different places.” 

Judge Stein concluded the hearing after nearly 90 minutes, reserving judgment.

Prince has been exhibiting his “New Portraits” collection for the last six years. A recent staging at the Museum of Contemporary Art Detroit drew backlash from new portrait subjects like Zoë Ligon, an online influencer who owns a sex-toy shop in Detroit.

“Imagine my surprise when I saw Richard Prince tweet a 6ft inkjet printed picture of a screenshot of an Instagram post of mine hanging up in my hometown of Detroit at MOCAD,” Ligon wrote in a November 2019 post to her 287,000 Instagram followers. “I didn’t consent to my face hanging in this art gallery.

“What Richard is doing is questionably legal, but even if something is legal and ‘starts a dialogue’ it doesn’t mean you should actually do it. Not all legal things are ethical. This, in my opinion, is a reckless, embarrassing, and uninformed critique of social media and public domain.”

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