If you follow copyright news, you may be aware of the 2014 settlement between Richard Prince and Patrick Cariou. This was one of the most significant copyright cases in recent times, and the United States Court of Appeals for the Second Circuit ultimately found that Prince’s use was fair because his work was transformative.
Under copyright law, it is considered fair use to utilize another’s work to create a new work so long as it presents the prior work in a different manner with a new aesthetic, insight or understanding. This can includes parody, critique or symbolism, among other uses. The more transformative the work has become, the more likely a finding of fair use.
For those unfamiliar with the case, Cariou was a famous photographer who put together a book of his photos in 2000 called Yes, Rasta. The images depicted the Rastafarian community in Jamaica. Prince, another photographer, took these images and altered them to create his own. These alterations consisted of painting over the subjects’ facial features, using only certain parts of the images, and dramatically increasing their size. Cariou sued for copyright infringement, as the photos were clearly taken from him, but Prince asserted the fair use defense.
The appellate court’s decision hinged on whether or not Prince’s work was transformative. Before settlement, the court found that all but five of Prince’s works were, in fact, transformative, as they did alter the original images in some way. Now, just one year later, this becomes the question again. In another bold move, Prince has taken images from public Instagram accounts without permission, enlarged them significantly, and put them in a gallery. Aside from removing the captions, Prince did not alter the images in any other way.
While “transformative” seems to have been applied loosely in the case against Cariou, it is very unlikely that Prince’s use of these photos will be fair use here. The Instagram users have yet to bring suit, but chances are high that no court would find this transformative. Prince simply pulled the photos from Instagram and is now profiting from their sale. Unlike with Cariou’s images, he did not add anything to the photos or take certain parts. He literally put the exact image on display. If this is what is considered to be transformative, copyright law is going to change significantly.
As for Instagram, a spokesman said: “People in the Instagram community own their photos, period. On the platform, if someone feels that their copyright has been violated, they can report it to us and we will take appropriate action. Off the platform, content owners can enforce their legal rights.” So it seems as though the only recourse for the affected users is to bring suit, where they appear to have a good case for infringement. If they don’t, Prince is content to laugh his way to the bank after his second round of altering other people’s images.
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