If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in”85Or its kissing cousin “have the exclusive right to,” which is almost a functional equivalent to ownership since even the owner can’t excerise the right in question. the thing you posted.

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

Ceci n’est pas Richard Prince. Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap from there to “Facebook Owns Everything You Post”86Which, to be clear, isn’t legally accurate.
This kind of ownership is most applicable to things like bicycles and cars. If you can’t control who can use your car, but someone else does, then that someone else pretty much owns your car. And the law would actually sort of back you up. The tort of “conversion,” which the civil equivalent of theft, depends on removing an item of personal property from the rightful owner’s control.
But photographs, short comments, and the like—the stuff you post—aren’t like cars or bicylces. You can’t just press a button and make another car. But your digital photographs can be duplicated over and over. Indeed, you might post the same photograph to Facebook, Instagram and Twitter. We aren’t talking about some physical item that happens to contain or embody your photograph—like a printout of the photograph—but something a little more abstract. Your “intellectual proprety.”

You, Yes YOU, Are the Proud Owner of Intellectual Property!

Yes, that sounds high-falutin. You take a photograph, look at it on your phone, decide it doesn’t suck enough for immediate deletion, and suddenly you’re the proud owner of some intellectual property? Yes! I know that sounds hard to believe. In this case, you are the proud owner of the copyright in the photograph you took. You now are the only person in the world who can (1) reproduce, (2) adapt87The Copyright Act calls it “prepare derivative works based upon…,” but old-timers call it the adaptation right., (3) distribute, or (4) publicly display the photograph. And if your work was something that could be performed, we could add a fifth “exclusive right”: publicly perform.
Unless, that is, you give someone else permission to do any or all of these things. Or if someone else’s reproduction/adaptation/distribution/display constituted a “fair use.”

Remember That Agreement You Didn’t Read?

And when you start using most social media services, you enter into an agreement with with the social media company—an agreement you probably didn’t read because it’s long, boring and legal-y. And, besides, what choice to you have? It’s not as though you can write to Facebook and say, “Hey, I’m like 95% in agreement with your terms and conditions, but the provision about my first born chlidren is something of a deal breaker for me.”88Full disclosure: Facebook’s terms and conditions make no mention of first born children. I’m just joking. Relax. There are lots of rules about what you can’t post, and the social media company can pretty remove anything it doesn’t like, etc.
And one of the things you agree to do is give the social media company really, really broad permission to do all kinds of things with the stuff you post. For free. Since we’re talking about Instagram, here’s what Instagram’s Terms and Services says about permission:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.

That’s unusually clear. I hardly need to explain it. What this means is that you continue to own the copyright in what you post, but you give Instagram permission to “use” that material, where “use” probably means exercise any of those aformentioned exclusive rights. If you want, you can also give the same permission to anyone you choose (because it’s “non-exclusive”). Instagram doesn’t have to pay you anything for this permission (it’s part of your overall deal with Instagram), and Instagram can give (“assign”) this right to anyone else it chooses (without your permission), and there’s no geographic limit to your permission (e.g., it’s not just limited to the United States). Oh, and Instagram can “sub-license” your stuff to anyone it chooses—i.e., Instagram can basically act as your licensing agent for your stuff, but it doesn’t have to share any proceeds with you (because your license is “royalty-free”). That’s a bit of a kicker, though it doesn’t really come into play here.89I’m a little surprised that this provision doesn’t address how long the license lasts. Does it end suddenly when you end your account? Does it last forever? If I were Instagram, I might want some clarity on this.
That’s a lot of permission! If you feel that Instagram sort of “owns” what you post, I don’t blame you. It can do with your stuff everything you can do. Instagram can, in theory90I’m not aware of Instgram’s doing anything like this, though., make money from your stuff. You can, too, but who do think is better positioned to monetize your stuff?

Why Aren’t Social Media User Agreements More Sociable?

Does Instagram need all of this permission? Well, mostly, yeah. Look at it from Instagram’s point of view. To even accept your upload of stuff, Instagram has to make a reproduction of that stuff. And if Instagram wants to shuffle files around from one server to another, it needs to make multiple reproductions of that stuff. Sure, these reproductions are probably defensible as fair use or implied license, but those are not 100% certain and the extent of Instagram’s rights are fuzzy. Why take the chance, and why not make things clear at the beginning?
But what about all this business assignments and sub-licensing? Isn’t that going too far? Well, again, Instagram has its reasons. Instagram will want maximum flexibility for how it structurs and operates its business. It might want, for example, to sell itself to another company. Instagram might need your permission for that, and it doesn’t want to ask all kazillion of its users serpately at the time. Or, it might want to set up a wholly-owned subsidiary. It’ll need your permission to transfer your license to the new subsidiary because technically it’s a different “person.”91Did you hear the one about the conglomorate that reorganized all its subsidiaries and a different subsidiary ended up operating licensed software, in the same building, on the same box, with the same personnel, and the licensor sued the new subsidiary, and the court held, yeah, you (new subsidary) aren’t the licensee so pay up? It was not universally found to be funny. The need to sub-license I’m not as sure about, but perhaps Instagram just wants to option to sub-license the content to a subsidiary or perhaps another company to which storage and retrieval has been outsourced?92You’re free to believe Instagram plans to make money from your photographs. They totally can, but I don’t know if they actually plan to.
Couldn’t Instagram incorporate some common-sense limitations to this license? Well, first of all, it already does, with that business about the Privacy Policy—that’s kind of a big limitation. But, even so, Instagram is giving itself a lot more permission that it really needs. Instagram could have, for example, limited the license to just making intermediate copies of content necessary to keep your stuff posted.93Or do whatever it is that Instagram does with people’s photographs. It could, in theory, issue a new license provision every time Instagram needs to expand the license, and you could, in theory, terminate your account once you start getting uncomfortable.
Instagram doesn’t do this because that’s risky and annoying.94You are free to also add: because Instagram hopes one day to monetize your stuff. I don’t know what Instagram plans. It’s risky because if Instagram isn’t complying with the license you gave it, Instagram is infringing your copyright. Think about how many users Instagram has, and how many photographs have been posted. If even a tiny fraction of Instagram’s users timely register their copyrights95Remember that statutory damages are available only if you register your work with the U.S. Copyright Office before the infringement (or within three months of “publication,” if that’s longer). Otherwise, you’re stuck trying to prove damages, which is often impossible. , Instagram’s exposure could be immense. Statutory damages start at $750 per work infringed and go up to $30,000, unless the infringement was willful, then it can go up to $150,000. Let’s say only 10,000 photographs have been timely registered.96The vast majority of photographs on Instagram aren’t registered, but I’m guessing several professional and semi-professional photographers do go to the trouble to register their works. And let’s say a jury thinks $2000 is a reasonable statutory award. That comes out to $20 million in easily avoidable liability. If you’re running a business, even a sweet, nice, totally chill business, you don’t take risks like that.
Instagram could have sub-licensed its users’ photographs to Richard Prince.97If reports are correct that Prince’s works are selling for $90,000 each, maybe Instagram should have. But it didn’t. We know this because (1) Instgram said it didn’t, and (2) Richard Prince never asks for permission for anything ever, as far as anyone can tell.98OK, that last part is an exaggeration. I’m sure he asks for permission before borrowing your cell phone to make a call. Nothing prevents Instagram from profiting massively off of your creative works you post. For some reason, it doesn’t. Perhaps it fears its users’ wrath. Perhaps that’s just not a business model it feels comfortable with. Perhaps it’s run by really nice people.99Even if you trust Instagram’s current management, remember that your agreement is with Instagram, not with the nice management people. Management can change. Also, the agreement is freely asignable. If someone less scrupulous buys Instagram, that buyer could start exploiting your works at will. When you enter into an agreement, you can’t rely on the other side’s goodwill to protect your rights. Those rights need to be in the contract, because you never know who might end up replacing the guy you made the contract with.

Genius or Not, This Isn’t Fair Use

I am quite astonished at the number of legal commentators who think Prince’s use of the Instragram photographs might be a fair use—that it’s at least a close question.100I’m even more astonished at legal commentators who think it’s clearly a fair use. Fair use is complex, they say. (True.) He won before. (Also true.) And he doesn’t have to comment on the pictures directly to “transform” them. (Also true.)
I’m here to tell you: Richard Prince’s use of the photographs isn’t a fair use, and it’s not a particularly close question.
There, I said it. It doesn’t matter that he has won previously in court. That was for a different work, and the result (when correctly understood) is defensible. The court will seriously not care.
Remember, there are four fair use factors, which I’ve detailed before, but with this caveat: the Second Circuit (which is where a lawsuit against Richard Prince would be filed) has been expanding the concept of “transformative use” well beyond Judge Leval’s original conception. One thing we’ve learned—from Prince’s own previous case—is that, unlike parody, transformative works need not comment on the underlying work.
As I understand it, to create New Portraits, Richard Prince has selected a number of photographs that are available for viewing on Instragram, made his own pithy or nonsensical comment on them, downloaded them, then blew them up, complete with comments (at least up to his own) to a fairly large size. He doesn’t alter them in any other way. Many of selections are based on quality and a kind of sexual je ne c’est quoi. Many are professional—or example, some taken from Suicide Girls’101Who had an excellent response: undercut Prince by selling copies for $90. Too bad Prince had already made his $90,000, so he couldn’t really be undercut. Instagram account. Others are clearly amateur. Supposedly, he has sold them for $90,000 each.

Is Transformatative Use Elitist?

Factor 1: Purpose and Character of the Use. This is where we get to talk about “transformative use.” Richard Prince would argue that he has transformed the Instagram photographs in a couple of ways. First, he has enlarged and hung them on the wall of a prestigious gallery, totally changing their ephermal, social-media context. Consider for a moment if that were really true, if merely changing context or media would count as “transformation.” If I placed the photographs in an art book, that would change the context just as much.
Second, he would argue that this change in context gives rise to a heightened artistic meaning. It’s a bit like Marcel Duchamp’s Fountain: Is it “art” just because you put it in a gallery or museum? Only, he’s asking: Is it “transformed” just because I’ve put it in a gallery or museum? Or else he’s commenting on our “sharing culture.” Does it make a difference if you share your own self-portrait with the world on Instgram, or if Richard Prince shares it with the snobby patrons of a New York gallery?
There is no “I’m a famous artist” factor in fair use. There isn’t even a “my artistic vision is beyond your feeble comprehension” factor. It doesn’t matter who you are (or, at least, it shouldn’t). Not everyone has access to high-end New York gallery owners (and Prince’s conceit doesn’t work if New Portraits were shown in a whole in the wall in St. Louis).
Copyright is in the service of art, but copyright is also democratic. And that’s in tension here. Artiness won’t always be enough for fair use102Or else we’ll be having TVEyes telling us that it’s recording wholesale news reporting “ironically.”. Fair use is a way to get copyright out of genius’ way, but it can’t become a plaything of a kind of artistic elite.
Don’t believe me? Two of the photographers whose works were appropriated have argued that Prince’s genius gives him carte blanche to do what he wants:

  • Miller Rodriguez told The Daily Beast: “Contemporary art is about doing whatever you want and congrats to him for making so much money … There’s no legal action to take because the appropriated the work and redefined its meaning.” Mr. Rodriguez has this to say to those who disagree: “I don’t know why it’s so f***ing hard for people to get! It’s mostly idiots and basic people103Wut? who don’t understand the concept is genius.”104No, the concept is cute. And seriously, what’s a “basic person”?
  • Karley Sciortino had this to say: “I thought it was really cool. … He’s made a career doing exactly this—playing and being provocative with the idea of ownership and copyright and appropriation.” And if you disagree? “I think it’s really telling that the only people who are ‘offended’105How did the reporter know she intended these quotes? Did she actually make air-quotes when saying this? by these artworks106She means, I presume, Prince’s entire installation. The ”artworks“ are the photographs he appopriated, some of which, I’ll admit, might be offensive to those of delicate sensibilities. are people that want money.”107Making money from your own art is so bourgeois![/ref]

I think the most daring argument Richard Prince could make is that his act of mass copyright infringement is part of the art. Getting permission would have detracted from what he was trying to do. Indeed, inspiring outrage (and fawning admiration) is part of the art. A room full of “stolen” art feels transgressive. He is throwing, into sharp relief, the tension between the elitism of art, and the democracy of everyday creation. We all own copyrights and are constantly owning more because we’re all constantly creating. But the copyright ownership that matters—those owned by music labels and publishers, movie studios—is elitist and part of a power structure. And who better to make this point that the defendant in the most celebrated copyright cases in recent memory108Something he appears to be surprisingly bitter about.?
It doesn’t quite come off. And not just because Prince is trying to have it both ways (he’s both an elitist and mooning the elite). It’s because he’s picking on people he thinks won’t fight back. On people who are, in a way, asking for it, since they’ve foolishly shared their images with the world.109I’ll note in passing that the majority of the subjects in the show are young women.
So, I get it. I really do. It’s art. It’s not as clever as it thinks it is, and it sure as hell is not genius, but it’s art. It’s just not fair use. The act of infringing copyright just cannot logically be a basis for fair use, no matter how artistic the act is. Practically speaking, if it’s fair use, then it’s not infringement110Technically speaking, since fair use is an affirmative defense, the act remains infringement, but it’s legally justified. But if you’re so secure in your fair use defense, then there’s no danger you’ll be punished for your infringement., and if it’s not infringement, then it’s not transgressive.111Then Prince will retort, “Ah, but that’s the paradox I’ve created. Copyright eats itself!” And everyone else will say, “STAAAHP!” People are outraged not because their work was “stolen”; they’re outraged because they think Prince got away with it.
So much for transformative use. Also under the First Factor is whether the use is commercial or not. New Portraits is obviously commercial: Prince sold the works for a lot of money. Commercial use isn’t as important as it used to be, but it cuts against fair use. Since there’s no transformative use, the First Factor overall cuts slightly against fair use. Sorry if that’s a bit of an anticlimax.112But the anticlimax was intended for artistic purposes.

Add in Factors 2, 3 and 4, and it’s Not Close.

Factor 2: The Nature of the Copyrighted Work. The more expressive the underlying work, the less likely fair use will be found. Photographs often aren’t considered terribly expressive, but that’s only when their value lies mostly in their factual qualities, such as depicting a newsworthy event. By contrast, the photographs Prince has chosen are actually highly expressive and imaginative, and many were taken by talented photographers who care about things like lighting, exposure, framing, composition, makeup, etc. He’s not just taking everyday photographs that we all take (and post on Instagram), perhaps to mock or judge. He’s taking especially expressive works. This factor cuts decidedly against fair use.
Factor 3: Amount and Substantiality of the Taking: Prince takes the whole freaking thing. This factor cuts decidedly against fair use.
Factor 4: Effect on the Potential Market for the Copyrighted Work. This one’s kind of fascinating. Prince created a market for these photographs that only he could create, and that’s the kind of market that doesn’t count. I.e., the copyright holders can’t say, “We totally could’ve done what Richard Prince did and sold these photographs for thousands of dollars.” No, only Richard Prince can really do that. At the same time, there is a general market for good photographs. Granted, you kind of undercut that market by putting your stuff on Instagram for everyone to see for free. I’d say this factor is neutral or perhaps leans slightly in favor of fair use.
But even with one factor slightly in favor of fair use, this isn’t close. Richard Prince is adding only notoriety and connections with the art world to the creativity of others. There might even be a broader point to his stunt, but it’s one he needed to get licensed for. Licensing’s not a ton of fun, but if it’s imporant enough, you can do it. Heck, there’s even an industry word for it: it’s called “clearing.”

Some Loose Ends

Three final thoughts:

  1. Prince does have a copyright in his selection and arrangement of the photographs, but not in the underlying photographs, so that’s not a defense against a lawsuit brought by one of the photographers. This cuts both for and against fair use (if at all). On the one hand, Prince can say that he needs to use these particular photographs to actuate his overall artisitc vision, to which he has a copyright. On the other hand, it starkly shows the limit of his vision: he needs other people’s creativity to make his own vision work.
  2. Instagram can’t do anything about this (even if it wanted to). It can’t enforce any of its users’ copyrights because … wait for it … it doesn’t own the copyrights (or have an exclusive license to the copyright). If Instagram really did own the copyrights, I doubt Prince would have had the guts to use the photographs—though that would’ve been way more “transgressive”—because Instagram would have the resources and motivation to sue him. Prince, however, knows that a bunch of mere individuals will only get angry but not have the resources to sue him.
  3. Prince can feel puckish and smug about what he’s done because he’s confident (perhaps correctly so) that he won’t be sued, not necessarily because he’d win the lawsuit. If so, I’m not sure why several of the copyright holders couldn’t band together with a single New York lawyer and sue him. Even if they hadn’t registered their works on time, they’d still be able to recover Prince’s profits from selling the works. If he really did sell them for $90,000 a pop, that might be worthwhile. Plus they’d have a shot at attorney’s fees. And it wouldn’t be that expensive a lawsuit. Infringement is all but admitted, so the only question is whether it’s a fair use. Besides a deposition of Prince, how much expensive discovery would the plaintiffs need to fully brief that issue on a motion for summary judgment?

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.