The Blurred Lines

The Blurred Lines Between Social Media Usage and Intellectual Property Rights

Artist Richard Prince selects photos he finds off of Instagram, makes minor manipulations and blows them up, then displays them in galleries and sells them for profit – all without asking permission from or providing compensation for the photos’ rightful owners.

The balance that exists between publicizing one’s art via social media yet retaining the intellectual property rights to that art is a delicate one. Richard Prince is a New York City artist that created an art exhibit entitled “New Portraits.” These portraits consist of images that Prince finds on Instagram. Prince uses images posted to the application by other artists, celebrities, models etc., tweaks them, blows them up, adds his own Instagram-style comment to the bottom, displays them in his gallery and sells them for tens of thousands of dollars. This surely is has helped him gain instagram followers by using the app itself in his pieces, more than he already has anyway. He might even use a social media tool similar to those from somewhere like SocialFollow – – to reach a larger audience to show off his pieces to other art lovers. Surely there must be some type of intellectual property infringement at issue, especially considering Prince neither asked permission before using and displaying others’ photos as his own nor did he provide compensation to these artists after the fact. However, there is more to be considered than the black and white legalities of the issue. I will use Prince’s story to illustrate the blurred lines that exist between an artist’s intellectual property rights and the difficulties created when these rights are intertwined with social media use.

Mixing copyright law with social media produces gray areas. For example, last weekend I visited the Metropolitan Museum of Modern Art in New York City, and admittedly a lot of my art admiration was viewed through the lens of an iPhone. I snapped photos of my favorite pieces to send to friends and family via text message and social media applications. I observed that at each exhibit, nearly everyone around me was doing the same. According to Steve Schlackman, an author for the online art law journaleach photo snapped and posted is a copyright infringement from a legal standpoint, yet from a practical standpoint, suing for each instance of this type of infringement is counterproductive. Lawsuits tend to become costly and time consuming and would most likely alienate audiences and prompt Internet backlash.

In Schlackman’s article entitled The Low-Risk Gambit of Stealing an Instagram Photo he examines whether filing suit against Prince in the present scenario is even worth it. Prince, as well as the gallery where his images are displayed, is well aware that his exhibit may be illegal. However a “fair use” risk/benefit analysis has essentially kept Prince out of trouble. Under this analysis, Prince believes that his conduct falls under “fair use” – a copyright exception that permits limited use of copyrighted material without acquiring permission from the rights holders. Fair use exceptions prevent the overprotection of one artist’s rights to the point where it would threaten to stifle the artistic expression and creativity of others.

Prince is well versed on the topic of fair use, especially after Cariou v. Prince, a 2013 landmark fair use case in which Prince prevailed. Cariou photographed images of Jamaica’s Rastafari and then transformed his images into a book. Prince later took and manipulated these images to create his own artistic works, as he has presently done with the Instagram photos. The issue is that his manipulations and edits to Cariou’s work were controversially minimal (see photo below). Nonetheless, the U.S. Court of Appeals held that the majority of Prince’s manipulated works constituted fair use because they “presented a new expression, meaning or message.” The Court argued that the prints were transformative because they manifested completely different aesthetics, targeted a completely different audience and did not interfere with Cariou’s primary or derivative market.

cariou v. prince (1)

Prince’s Instagram photo manipulations presents a slightly different scenario, and what constitutes fair use is very much determined on a case-by-case basis based on the specific facts at hand. Schlackman believes that if Prince obtains legal rights to all of his Instagram gallery photos, it will be because of the court decision in Cariou v. Prince.

Schlackman finds it unlikely Prince would successfully obtain legal rights over his Instagram manipulations. However, artists are not exactly running at the chance to sue Prince. Before doing so, there are practical, legal matters that need to be taken into consideration. For example, only copyright holders are allowed to sue, and the model posing in an Instagram picture is not the copyright holder – her photographer is (unless the picture is a “selfie”). Thus, the photographer would have to transfer his or her copyright rights in order for the subject of the photo, in this case the model, to sue. A photographer may be reluctant to sue in the first place, due to the substantial cost and time deficit involved in a suit, (Prince’s suit mentioned above lasted five years) that may not be justifiable when compared to the potentially recoverable damages. For example, damages in the Instagram controversy would be measured by the profit Prince made off of the work, which would be less than his gross sales price of $90,000. Ultimately, the profits to be awarded in suit as damages may end up being less than legal fees expended, especially in instances where a photo does not sell at all. An alternative to suing for damages may be to send a cease and desist letter to prevent Prince from further using the work, as one artist did. However, this is where social media can get tricky – Prince sourced the artist’s photo from one Instagram account, which in turn sourced it from another, which in turn sourced it from yet another. How could the original artist order a cease and assist against Prince without first confronting the other sources that lead to Prince obtaining the work? Lastly, if an artist did decide to aggressively pursue a lawsuit against Prince, Prince could always offer a settlement plan for the artist that would not effect the profits he or the gallery hosting him obtain from other works in the collection.

Based on the fair use risk-benefit analysis above, Prince seems to be in a relatively secure position. However, he must also overcome legal issues pertaining to right of publicity. Right of publicity constitutes the right of an individual to control the commercial use of his or her identity, and such laws vary by state. Damages for right of publicity usually come in the form of injunctive relief, in this case having the picture taken down, and monetary damages to compensate for any emotional distress caused by the work’s use (proving emotional distress for a photo hanging in a gallery can be difficult). Counting on punitive damages is generally not recommended when suing for right of publicity.

In conclusion, legal lines are significantly blurred when it comes to the artistic use of photos acquired from social media, and Prince seems to know how to take full advantage of this confusion. I can only imagine that more such legal issues will arise as our society’s use of and dependence on social media continues to evolve. It will be interesting to observe how intellectual property law adapts to accommodate these changes.

If you are an artist who may have an arts-related issue concerning any of the legal topics mentioned above, such as copyright infringement, fair use or right of publicity, do not hesitate to contact VLAA for a consultation or to visit VLAA’s copyright page to learn more general yet important information pertaining to intellectual property issues in the arts world.