Richard Prince Instagram series reflects digital-age values.

“Of course it’s art,” writes The New Yorker critic Peter Schjeldahl. “… though by a well-worn Warholian formula:  the subjective objectified and the ephemeral iconized, in forms that appear to insult but actually conserve conventions of fine art.”

What Schjeldahl is referring to is a September exhibit at the Gagosian Gallery in New York City by visual artist Richard Prince, who for much of his career has made extensive use of appropriation in his work, though it’s fair to say that many would consider the word work generous in Prince’s case. This exhibit featured 38 images that he re-photographed from Instagram and then ink-jet printed onto canvas in poster size along with fragments of social media comments, emojis, and one comment by the artist himself.  The series has been called “lazy” and “theft” by many, adding to Prince’s infamy among photographers and copyright advocates for continuing to unabashedly use other people’s material without permission.  And last week, those communities again had reason to hate on the artist in blogs, articles, and comment threads responding to the revelation that some of the Instagram canvases were sold at the Frieze Art Fair for up to $100,000 a piece.

No question it’s easy to dislike Richard Prince in this case. Though I feel the vitriol is well covered, I’m happy to jump momentarily on the bandwagon to say that, yes, I think this work is lazy and consistent with other examples of Prince’s disregard for fellow photographers. This of course includes the more serious case in which he got away with appropriating the work of professional photographer Patrick Cariou.  Having said that, though, I do think there’s more to this story than a grabby headline about a rich guy making a pile of money with other people’s Instagram photos.  To that end, it occurs to me to examine this exhibit through the lens of the most common criticisms.

It’s lazy. But is it art?

Apparent laziness or effort on the part of the artist is of little use I think in any conversation about either the social or monetary value of a work. This is in fact a premise I reject on a regular basis on this blog — that the value of any single expression should in any way reflect either the intrinsic or extrinsic cost of production.  If for instance a song moves you, it doesn’t matter if it took the artists who created it six weeks of blood and soul or six hours of beer and pretzels. As audience, our role is to enjoy the song or not; how it came to be isn’t necessarily our business.

Moreover, the history of fine art is full of examples of appropriation, found art, and other expressions that critics both professional and amateur might be tempted to describe as “lazy.” Most notably one thinks of the “Warholian formula” to which Schjeldahl refers, but of course some might express similar disapproval of Jackson Pollack, Marcel Duchamp, or any number of abstract painters, sculptors, and performance artists. But if an exhibit or single work sparks conversation, even makes people angry, then we probably have to concede that the expression is art in the critical sense. And as a technical point, my fellow copyright defenders want the definition of art to be broad and critically neutral. So, I think we should be careful that while assailing Prince’s lack of respect for copyrights in general, we not confuse this with dismissing any work as a non-expression even if we want to call the creator a hack.

It’s certainly true that on the surface, this Instagram series hardly reveals anything we might call work on the part of the artist. The compelling element in each print is after all someone else’s photograph onto which Prince has applied the barest effort and called it his own. It is even a safe bet, given the fact that he is quite wealthy as artists go, that Prince has an assistant or two to do the “heavy lifting” for a project like this. And again this places the exhibit in historical line with the Warhol Factory.  But whether intended or not, I do think Prince has actually done something rather interesting by removing these images from the transient (one might say disposable) platform of social media and forced them to exist at least for a moment as photographs — “Artifying non-art,” as Schjeldahl puts it.

A photographer friend of mine, who also forages in appropriation, says that “photography asks us to hold still,” which is the opposite imperative of social media that demands we keep moving, gorging ourselves, snacking on images all day long. Prince’s use of these Instagram photos may indeed reek of indolence and even shamefulness, but the exhibit itself is also a rather provocative statement about social media and the broader devaluation of photography in the digital age. A good villain in any narrative usually tells us something about a flaw in the hero, and in this sense, the fuck-you-ness of Prince’s choice becomes something of a cautionary tale. It says, “You put these images someplace meaningless and forgettable, but I made them into art.” Peter Schjeldhal calls the series inevitable. If Prince hadn’t done it, somebody else would have, he insists.  And perhaps if a lesser-known artist had done it in some humble presentation, it would trend “cool” on social media. But it was Richard Fucking Prince, and he made a pile of money. And that seems to make all the difference in the world.

The Money (Why does it matter?)

First of all, I think it is important to offer a different perspective on a common theme running through much of the top-line criticism of the Instagram series. Because I think it’s technically misleading to say that this is a story about how a rich guy gets away with copyright infringement to the detriment of the little guy who cannot defend himself. The reality is that in order to sue someone for statutory damages due to infringement of a photograph, the original must be registered with the Copyright Office; and it is almost certain that none of the photographs Prince used (not to mention most of the images on Instagram) are registered. But if one photo were protected and its owner chose to litigate, the fact that Prince is wealthy would only make him a more attractive defendant, not a less attractive one.  It’s always better to sue people who actually have money, so it’s a bit counter-intuitive to suggest that Prince is shielded by his wealth; and it is more accurate to say that he’s shielded by the fact that the photos he used likely offer no path to pursue a claim.  (As a side note, Ellen Seidler at VoxIndie took this story as an example of why we need a Copyright Small Claims Court.)

So, having made that particular distinction about the role of money in this story, I’m still intrigued about its function from an emotional or cultural perspective. What if Prince put up the same show but didn’t sell any of the works?  Immediately, audiences and critics would be forced to judge the exhibit exclusively on its merits or lack thereof, and this might change opinions about it entirely.  Would all of the same people whose photos were stolen suddenly love the exhibit and be flattered because now the artistic statement is more pure, unsullied by commerce?  Certainly, that would be somewhat consistent with the “sharing economy” ethos borne of the digital age.  But a more apt metaphor for turning Instagram images into a physical gallery experience would be if Prince hosted the show for “free” by getting a sponsor to pay him a million bucks. The sponsor could even be Facebook! Would that change anyone’s feeling that Richard Prince is a thief?  If not, then I have to ask why it’s okay for Google, Facebook, Twitter, etc. to do almost exactly the same thing?

Of course another part of the narrative here in which money has a hand is the complaint that Richard Prince gets away with this because he’s Richard Prince.  True.  But welcome to the fine art world. It has always been a rarified environment in which the distinction between genius and charlatan is defined by the chaotic forces of intellect, ego, and wealth. Among those with the resources to pay a hundred thousand dollars for a print, one finds connoisseurs and posers — those who buy according to tastes they’ve developed for themselves, and those who buy according to tastes they’ve let others develop for them. This is nothing new. And this particular brand of commerce will always produce the classic antagonists of the academie and the refusé.   Good luck attempting to parse that. But the reality is that many buyers are investing, hoping their prints will appreciate in value regardless of any particular taste or connection to the work itself. And this means that, yes, Richard Prince gets away with selling his lazy-ass work for that kind of money simply because he is Richard Prince. It was ever thus. C’est la guerre.  Blaming Richard Prince for being Richard Prince is pointless. The question is how the money affects our judgment of him as an intellectual property thief.

Theft (Would this be fair use?)

Although I’ve stated the technical reason why Prince will almost certainly not be sued over any of the works in this collection, the Instagram series still raises the hypothetical question as to whether or not he might effectively make a strong fair use defense in an infringement case.  I’ll stick to my general rule of not offering an inexpert legal argument, especially regarding a case that will never happen.  That said, case law precedent, including Prince v Cariou itself, suggests that the courts could uphold a fair use defense for one of these works, though I certainly think that would be dismaying.  As stated in another post, I believe if fair use doctrine becomes a free-for-all, it ceases to have much meaning as a doctrine and as an important limitation on copyright.

What is interesting from a cultural perspective, though, is to consider the general sensibility about fairness in our times, regardless of any technical understanding of fair use doctrine.  The Internet industry likes to promote the idea of “expanding fair use” because this serves their business model at this time.  And millions of Internet users like the sound of this argument for what I believe are two reasons: the first is that they like the convenience of linking, embedding, copying and pasting without having to worry about infringement; and the second is that so much communication on the Web is produced without any expectation of revenue.

So, I suspect many people favor very broad applications of fair use doctrine as long as it at least appears as though nobody’s making any money.  But when we tell many of these same people, “Hey this wealthy dude just made bank by selling complete strangers’ Instagram pics,” many will say this sounds inherently unfair — as though some tech-age, social compact has been broken.  It’s as though there’s some unspoken rule that says we can steal all we like from one another as long as nobody makes money except the big site owners and the VCs.  There is hypocrisy in the attempt to straddle this particular fence because technically, Richard Prince has done nothing different than Instagram itself. And of course that’s why I think this exhibit that bridges the worlds of social media and traditional fine art is particularly interesting, especially because it’s rude.  Put another way, this exhibit is a manifestation of the kind of copyright paradigm many people are asking for. Creators who buy into the whole “democratization and sharing” narrative should realize it will always be a Richard Prince or a Mark Zuckerberg who will make the money.

I will comment on one of the four factors of fair use here because I believe it may allude to the heart of what many artists and even non-artists find so unfair about this Instagram series.  One of the factors weighed attempts to assess the extent to which a derivative work might threaten the market value of the original.  In this case, such harm could be substantial, particularly given the above statements about commercial value that is tied exclusively to the imprimatur of a famous, pop artist.  Imagine an unknown photographer is trying to break into the market, and along comes Richard Prince, who signs his name to one of this guy’s images and then sells it.  Not only would that be theft in the first place, but it could also render the original photo valueless now that there is a “Richard Prince” version of the same photo in the world.  And that is, at least metaphorically, what Prince has done with the photos in this Instagram series. Not only should that not be considered a fair use in a court of law, but I suspect that on the most instinctive level, it is the reason we are required to hate him.

© 2015, David Newhoff. All rights reserved.

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38 comments

  • “The compelling element in each print is after all someone else’s photograph onto which Prince has applied the barest effort and called it his own.”

    Have you looked at the work? He LITERALLY credits the original photographer by leaving their name/handle on the piece. What makes it “art” as opposed to some random re-print of a PUBLIC photo is the context HE creates by adding a snippet from the comments. What you are missing is that it was already “art”, all he has done is take one form of art and turn it into another. The closest comparison I can make would be that this is the equivalent of covering someone else’s song. It is still “art”, and unless it is copyrighted his interpretation is just as valid as anyone else’s. He could have easily selected 38 images. Set up 38 shots that mimic the original, written 38 almost identical comments and sold the whole thing as original. And honestly in this case it would have made almost the same statement. Part of the “art” here is WHO said what in what context. You may not see that as particularly creative, but that does mean that it isn’t.

    “Imagine an unknown photographer is trying to break into the market, and along comes Richard Prince, who signs his name to one of this guy’s images and then sells it. Not only would that be theft in the first place, but it could also render the original photo valueless now that there is a “Richard Prince” version of the same photo in the world.”

    1. An unknown photographer who is stupid enough to post something he intends to sell on instagram has bigger problems than someone like Richard Prince.

    2. It would not be “theft”. You can’t steal something that is made freely available for public consumption.

    3. He did not simply copy and paste the image. He did not remove context(who posted it). And he did in fact add something to the particular work by combining it with the comments.

    Is his work the most creative I have seen? No, of course not, but it certainly is not akin to theft, by any definition of the word. There is a reason that Instagram terms of use state that they are not responsible for the propagation of a persons work. Because it is not a private gallery, it is a public gallery.

    Sigh

    • David Newhoff

      AV –

      With regard to your first response, the credit is irrelevant. I say “called it his own” on purpose because that’s what he’s done. Beyond that, I spent a fair bit of time defining the work as “art” even saying that I find it compelling in its obnoxiousness.

      As for your second point, the hypothetical didn’t say anything about a an unknown photographer who posted his image on Instagram, just a photographer whose work was taken. I use the hypothetical to bring the point back to what I think photographers find so upsetting — the reason the sale of these works by a name-brand artist is the headline on so many posts.

      • Well, he called it his own because technically it is, but fine, I can see your point.

        But the point of where the art was posted is relevant to the idea of it being “stolen”. He did not take someone’s published works and claim them as his own. He, be it right or wrong, used public photos in an artistic interpretation of social media.

        I think the distinction is important.

      • David Newhoff

        The point is that it’s a bit of both. Legally, he’s in the clear, not because Instagram is public per se, but because none of the works are registered. Regardless, there’s a reason so many headlines say “Richard Prince makes money with other people’s Instagram photos.” Part of the point of the essay is in addressing the contradictions — why people feel a sense of ownership in one context and not in another.

    • as to the comment about covering someone’s song – you need to pay the original artist royalties if you want to cover someone’s song.

      there’s a certain amount that you need to pay in order to record and sell your version on iTunes or as a physical cd.

      and there’s even a certain amount bars with covers bands have to pay to have the music played in their establishment.

    • The newest great artist

      So, what I intend to do is find some of this assholes work, copy it, and sell it. My artistic statement is a whole new dimension in art…

      Stealing as expression.

      Opening at a fuckingly, amazingly stupid gallery new you!

      • The newest great artist

        “Peter Schjeldhal calls the series inevitable” and maybe he will host the ripoff show. It is just as inevitable as the fight over copyright laws (currently being worked on in Congress.) It is as much a social issue deserving of attention and contemplation as the mindless use of social media.

  • You missed the primary and obvious reason that someone as wealthy as Prince supported by his financially bloated gallery has the advantage over a small guy in court. As in most cases before civil court, the person that has the most money can afford teams of top lawyers to defend them while dragging cases out, including the appeals process until the plaintiff runs out of funds. For an example if this just look to Cariou v. Prince.

    • David Newhoff

      Thanks, David. No, I didn’t miss that, but I felt it important to make the point that an even a poor artist could have “gotten away” with this with regard to copyright because there’s no practical way to pursue the case. You’re right that the guy with the most lawyers usually wins, but that’s only a piece of this story.

  • I assume that eventually the US Supreme Court will rein back fair use eventually – it seems thoroughly out of control.

    I wonder whether photographers whose work was taken by Prince might not have a claim under Directive 2001/84/EC and other droit de suite legislation, if they are nationals of such jurisdictions. That would be a nice outcome for them, though it might depress Prince’s revenues somewhat.

  • I don’t think it would be ironic if it were Eric Shmidt who purchased the display..
    I agree with Dave, I find it sort of despicable and sort of alluring in a way. It wouldn’t find its way on my wall, but I can see how a certain type of customer would think it was perfect.
    I feel he would sell well in SillyCon Valley..

  • “The reality is that in order to sue someone for statutory damages due to infringement of a photograph, the original must be registered with the Copyright Office; and it is almost certain that none of the photographs Prince used (not to mention most of the images on Instagram) are registered.”

    With statutory damages & attorneys’ fees off-the-table, these photographers are still reserved the right to pursue actual damages AND the disgorgement of profits Prince and the gallery made from selling these unlicensed images (17 USC § 504).

    Though actual damages of using Instagram photographs would likely be nominal, profits, on the other hand, could be another story: The selling price of each work ($100K-$90K???) minus the cost/expenses to prepare the work for gallery showing (I’m reading that all 38 works sold??? $3.8M???).

    If the majority of these infringed Instagram photographers joined together to retained a single IP (NYC) law firm (NOT a class action suit), the legal costs to pursue multiple settlements against Prince might be somewhat economically feasible, especially if the general sentiment is that Prince’s Instagram appropriations don’t fall under Fair Use.

    • David Newhoff

      AC –

      Thanks for commenting. You’re right that one may pursue actual damages no matter what, but I chose not to muddle that paragraph with this technicality because it gets a bit into the weeds on process, which strays from the larger points I hoped to make in the essay. In practice, of course, statutory damages exist partly because actual damages can be very hard to prove, even in a more solid case than this one. Hence, without the basis for collecting statutory damages, it is damn near impossible to get an attorney to pursue a claim of actual damages. Your idea of a collective pooling their claims to afford a single suit is interesting in principle, though probably not a path in this case. For one thing, I’m pretty sure all 38 did not sell, but even if they had, each owner would have to demonstrate they had a financial stake in the image, which is doubtful with a grab bag of Instagram photos. Finally, sentiment about fair use wouldn’t matter, only how the court would rule. That’s one of the things I find interesting about this story. Prince may have a better fair use argument in this case than he did in Price v Cariou yet the public attention focused on his selling these works has generally skewed toward how “unfair” it seems. My personal feeling is that if one owner had a registered work and could make a claim, that this use fails under at least three out of four factors, but I would say that about Cariou as well. So, I guess I don’t smoke the same brand as the Second Circuit Court of Appeals.

  • David,
    I’ve been avoiding commenting here lately because I think you’ve descended into troll territory, which is sad, and I hope you get out of that so that this blog resumes being interesting. As well as, of course, because that’s no good anyway.

    But there has been a development in the Prince matter, which I thought you’d like to know about:

    http://suicidegirls.com/members/missy/blog/2837632/tuesday/

    Apparently at least some of the images used are from the Suicide Girls organization (or whatever it is precisely) and their reaction is to sell copies as well, and to donate profits to the EFF.

    It’s nice to see that some people have healthier reactions to this sort of thing than others.

    • David Newhoff

      Well, I’m sorry you feel this article descends into troll territory, but I got nuthin’. Since a troll is someone who doesn’t mean what he says but only seeks to disrupt and provoke, I’m disappointed that in nearly 2,000 words I failed to provide you with any food for thought on this matter. If anything, I’m one of the few copyright defenders who does not dismiss this series outright, but whatever. Thanks for the link. It’s kind of interesting I guess. Perhaps if I wrote shorter pieces that don’t really say anything like that one, I’d be less troll-like in your eyes. I’ll try harder in the future.

  • Great writing here. I feel the exact same way about it. It’s lazy and inevitable, and it sucks you do already have to be famous to get away with something like this. But as far as art goes–whatever it really means–if it agitates or upsets evokes or provokes or excites something in people it’s always good. The pictures do maintain the element of pictures since the dawn of human visual creativity: portraitures. Everyone got mad–like you said–at Duchamp, Rothko, Pollock, Matisse, Kandinsky,…artists have been going to court for challenging things for all time…Oscar Wilde, even James Whistler was sued by a critic who slandered his work as incapable of being art; he was what we call today an impressionist. It’s not about whether you think its good or bad, immoral, moral, or amoral it’s that it happened and somehow we got here.

  • I would hope that at some point the digital nature of modern creative arts would displace the need for Copyright Office registration. Copyright is supposed to attach the moment a work is created; registration has really always been simply the only practical way of proving one is the originator, and a bit iffy at that, as one might steal a work, but win the race to registration. But nowadays, digital works will be date stamped by their creation, present in their original and highest resolution incarnation on the creator’s hard drive, and quite likely date stamped again as to their upload date on a server, like Instagram’s. Furthermore, it appears that Prince is making no bones about the fact that he is simply grabbing these images off the web. Frankly, the users ought in principle to be able to prove and use their automatic copyrights to sue for profits or prohibit further dissemination at will, using digital evidence to establish their copyright. The Copyright Office is impractical and overly expensive, given the flood of creative works enabled by digital media. Application of this idea might depend upon statute or upon courts’ willingness to take this approach, as well as, in this case, on Instagram’s agreement with its users (perhaps they have their own cause of action against Prince), but again, in principle it strikes me that this would be appropriate and highly doable.

    • But I would never advise anyone to rely on such methods until the law makes it explicit, in case that needs any clarification! 🙂

    • David Newhoff

      Thanks, Thomas. Of course there are other ways to establish registration, and I’m sure you know that digital thieves strip metadata all the time. I think Ellen Seidler is onto something bringing up the Copyright Small Claims court in this case, and it would certainly be nice to couple that with an easy, low-cost way to establish ownership ahead of a prospective small claim. This is Copyright Alliance statement to Congress on the matter for what it’s worth: https://copyrightalliance.org/sites/default/files/07_2012_small_claims.pdf

      • Metadata can be stripped and added to a work. What is unlikely though is for the infringer to have the uncropped unprocessed out-of-the-camera original. And even if they do, they won’t have the unpublished images taken during the same session.

    • He’s screwed if any of the works were created by a non US citizen as many of the registration laws don’t apply in such cases.

    • The Rolling Stones basically sued the Verve out of existence for the resemblance between “Bittersweet Symphony” and “The Last Time”, despite that the Verve had paid to sample the latter tune. The resemblances between the cases may not be binding for a variety of reasons, but one might read that by failing to pre-negotiate some aspects involved in manipulating the “context” of the Stones song, the Verve gave up any right to resell the Stones’ content.

  • The absurdity is that there are people in the world willing and able to purchase the prints, whether or not they believe they’ve purchased art. Several people walked into that gallery, viewed the prints, and decided they were worth $90K. Did those people stop to consider the origin of the material? Do they care?

    I disagree with the comment that equates this with covering a song. A musician who covers another musician’s song pays royalties to the composer. I haven’t seen anywhere that Prince is paying a royalty to anyone. In my opinion, that is the source of his dishonesty. A closer analogy would be a musician who samples a phrase or hook from someone else’s song and uses it in his own composition. But he still pays for the use of that sample.

    I agree with the comment that the prints need to be viewed in context. Prince created a new context for the images and captions by printing them and hanging them on a wall. His context is his contribution to the work, and it is valid. Is his context worth $90K? Not to me, but apparently it is to someone. Furthermore, the nice thing to do would be to compensate the original artist. The context belongs to Prince, but the content belongs to someone else. Including their name is insufficient. Clearly Prince is not interested in what is nice or fair if the law allows him to operate this way. But it raises an interesting question: is art content or context? Both? To what degree, and who gets credit?

    But again, I believe the onus in this case is on those who bought the prints. I’d like to hear their point of view.

    • As for the art buyer:
      I know and have known several very wealthy individuals, and I can say from their point of view:
      Most people who buy art at this level (I’m talking the $90k/per level, not the I feel like supporting a lazy thief level) do so as an investment, speculating that the piece will gain in monetary value. Wealthy individuals think differently in terms of buying stuff… either it will help a tax write-off or as in this case, it will gain in value. (that’s probably a large part of why they’re wealthy..) That there is controversy and lots of commenting on the piece (and artist..) will only help Prince’s bottom line. Sadly someone is making bank on our outrage, and Capitalism is at work.
      That’s why we need rules and regulations… when certain folk smell money, theres a stampede that heppens… and it’s ALWAYS the little guy who ends up under-foot.

  • Having the RAW image is the same as having a copyright through the copyright office, someone forgot to mention this!

    • David Newhoff

      Not with regard to statutory damages, though. It can establish ownership, but without the registration, the owner cannot seek statutory damages.

  • Yes, Richard Prince did spark “a conversation”. An interesting one. To me, it’s a matter of basic respect that you treat others with (it’s called integrity). I am also an artist. I would not consider myself to be a person of high integrity by using photographs of people without their permission and profiting from them. Because I wouldn’t want someone to do that to me. But it’s pretty evident this guy has no integrity and seems to be almost sub-human, plus a little creepy. Look at his twitter feed, there is a recent tweet about his uncle’s niece in which he makes a slightly subversive lewd comment. But that’s a theme that shows up in alot of his work if you look at all of it. Slightly subversive perverseness and lewdness.
    And also I’m pretty sure he violated the Instagram terms of use. From the instagram terms of use: “and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.” Instagram content is everything that people upload to and through instagram (I’m pretty sure). So why hasn’t Instagram gone after him I wonder? That would be an epic court battle.

    • David Newhoff

      Thanks for writing, Ethel. I am no fan of Richard Prince, of course, but the truth is I can’t imagine (and would shudder to consider) a litigation stemming from a user violating TOS of any website. Usually, the penalty for such violation is having one’s account shut down, which is about as much power as any of these companies should have, and one they’re understandably reluctant to use. If there were grounds for litigation in a case like this, I would probably have to side with Prince over Instagram because I think the precedents that might be set in an opposite judgment would potentially chill the expression of many types of artists, including perfectly respectful and brilliant ones, who don’t say creepy things on Twitter.

      • Are you a lawyer? I am just wondering, as I am not. Chill expression? How so? Most artists use the works of other people as inspiration, I do it all the time. My finished result is always my own creation and looks nothing like all the inspiration I looked at. That’s the essence of creativity in an artistic sense. This case of violating Instagram’s terms of use I think is pretty cut and dry. The guy made massive profits from Instagram’s content. But I see your point, what will stop Instagram from going after other work and saying hey that looks like xyz on our site and you made a derivative work. Which I think would be harder to prove in court than Richard Prince’s situation.

  • my comment continued…
    However, I think we already have a dangerous situation. If you read the TOU’s for all these sites, Instagram, Threadless, Society6, Facebook. They are essentially all the same. They have a royalty-free, non-exclusive license to the content uploaded in which they can sub-license. And do not have to pay whoever uploaded it (as long as they also own the copyright) a dime! Wait till they start sub-licensing it, if they ever do. Now if someone uploads something that they are not the copyright holder of, and say Instagram sub-licenses it to someone, then there would be a problem I guess. I am more fascinated with the intellectual property ramifications of the Richard Prince drama than I am about his b/s contextual reason justifying his “work”.

    • David Newhoff

      I am not a lawyer, though I’ve learned a few things over the past few years writing about this stuff. I think there is great danger (and I have alluded to this in other posts) in TOS that attempt to assert copyright claims to material loaded onto their sites. (I think Google’s TOS presently implies ownership of everything uploaded to the entire universe of its sites.) We have yet to see (I think) a situation in which a user uploads, for instance, a photo and a site then exerts its own copyright claim in that photo when some third party uses it without permission of the site entity rather than permission of the original owner. That precedent would imply that I could load a registered photo to a site and then lose my own copyright interest in it to the extent that the site could sue me for use of my own photo. I don’t actually think we’re heading there, but I would not favor any case that establishes a UGC site’s copyright interest in any of the material uploaded to its servers by users.

      Instagram TOS claims no ownership in the images uploaded to its site (i.e.the images are not their content); and violation of TOS is not grounds for litigation unless said violation somehow results in some ancillary harm that would permit a suit. Instagram would have no case against Prince in reality (except maybe a weak trademark violation claim), but your hypothetical started me thinking about a situation in which a site owner might make such a claim, and that would be disconcerting on several levels. With regard to chilling expression, websites need to be judged according to the standards of fair use just like any other work that might be used. Websites are public businesses deserving of scrutiny, commentary, parody, etc. If I make found poetry out of a bunch of tweets, Twitter should not succeed in suing me for infringement of “its” content. Sites enjoy safe harbors from liability for UGC, so they certainly don’t deserve ownership status of that content.

      It’s certainly getting tricky with regard to sites that have shown an interest in establishing their legal right to license or reuse works that are uploaded, but most of these cases wouldn’t be copyright issues anyway because the majority of images uploaded are non-professional, non-registered works. Hence, we’re more likely to see instances like this one in which individuals may sue for misappropriation of likeness. If that happens too often, though, people will shy away from using these sites rather quickly, which will kill any notions site owners have of using photos in this manner.

      All that said, I would generally favor the artist (legally speaking) who uses material from sites for the purposes of expression, even if I think that artist is a hack, a jerk, and fundamentally a thief.

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