| Richard Prince Use of Kim
Gordon of Sonic Youth Photo Called Classist
Not Fair Use
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
July 28 – Artist Richard
Prince's use of photographs
for his own works was debated
in a July 28 oral argument
before U.S. District Court for
the Southern District of New
York Judge Sidney H. Stein. It
gave rise the accusation of
Prince's "classist" view of
copyright law, that since he
is the bigger or better known
article, he can appropriate.
Inner City Press live tweeted
it:
Artist Richard
Prince has been sued for his
use of a photo of Sonic
Youth's Kim Gordon in his “New
Portraits” series on Instagram
- Jeff Koons cited -
Prince's
lawyer: These are
transformative works. There
are important alterations. The
colorization, the method of
printing. Take Google Books,
for example -- Judge Stein:
Google Books is very
different. Prince's lawyer:
Yes, this is a fine arts case.
Prince's lawyer:
Even plaintiff's own experts
admit there are differences.
The question is, Is there
something new? Yes. Does it
have a difference character?
Yes. Documentary photo versus
commentary on social media,
selfie culture. Judge Stein:
Let me ask a separate
question. What does the
defense say about the fourth
factor? Prince's lawyer:
Transformativeness has become
a more important factor that
it was 25 years ago. The
Harper & Roe case, for
example.
Prince's
lawyer: Kim Gordon only gave
McNatt the rights for Paper
Magazine, nothing more...
There's no market to be
adversely impacted. Both
plaintiffs got more interested
in their own work after
Prince's use - they made more
money.
Prince's
lawyer: In 2010, the license
on Facebook was incredibly
broad. Mr. Graham used the
"everyone" button. Even people
off Facebook could use it.
Facebook changed that license
years ago.
Prince's lawyer:
He put that image on Facebook
because he wanted to be
well-known. It has worked for
him. That has to be taken into
account. On McNatt, the
Instagram post, it was fair
use. McNatt only claims his
moral rights were injured, not
copyright.
Now Blum
& Poe's lawyer Nina
Boyajian: Fair use assumes
that there is copying. The
only question is whether they
have a difficult character or
meaning. Conceptual art is
different from photography.
Social media commoditizes
everything.
Judge
Stein: It don't think you can
argue photograph is purely
informational and not art.
Boyajian: I'm not
saying photography is a lesser
art. These works are desired
by different people. Not
better people or worse people.
Just different people.
Boyajian: If a
person wanted Rastafarian art,
you couldn't go to Mr. Prince.
The work is off the
market. Judge Stein: The
transformative issue is in
dispute. Who's going to speak
for the plaintiffs?
Caitlin
Fitzpatrick, for Donald
Graham: This is about an
appropriation artist taking
the work of those for whom he
has no respect. He does so
with impunity. This not fair
use, it's just minor
alterations. He took the
heart of the original work,
added gobblygook.
Fitzpatrick:
In this Circuit, there is not
enough transformation here.
Prince was asked, Were you
offering any criticism of
social media in your work? And
he said, No. He said, I wanted
to have fun. I wanted to make
art.
Fitzpatrick:
Recently a use of "who's on
first" was found not to be
fair use. The thing used has
to be parody, not just used in
a parody. Here Prince said he
could have used any photo of a
Rastafarian. So he fails under
controlling precedent.
Judge Stein: But
what about the First
Amendment? Fitzpatrick: We're
talking copyright law, fair
use - the test is a
reasonable, casual lay
observer.
Judge Stein:
Prince has proved some market
value by his name, like a
"Birken bag," whatever they
may be.
Fitzpatrick:
This is a classist view of
copyright law. "I took your
work and put my name on it, I
helped you." We reject that.
Judge Stein: But
if we look at it as
economics... Where's the
market harm to Graham?
Fitzpatrick: This
was addressed in the Rogers
case Fitzpatrick: His use on
Twitter, just scanned photos
to his 24,000 followers, is
not fair use. Now he says it
was commentary on the
lawsuit.
Judge Stein: Ms.
Appleton, do you wish to speak
for the Gagosians?
Tracy Appleton for Gagosians:
No thank you.
Judge Stein:
Right choice
Now the reply by
Prince's lawyer Ian Ballon,
from Montreal: Plaintiff's
argument relies on this Court
misapplying the law of fair
use. Rogers v Koons is not the
right standard. The Supreme
Court changed the law in the
Campbell case.
Ballon: Blanche
v. Koons is directly on point.
The 2d Circuit says the court
should not substitute its view
for that of the artist. Here,
they had tried to submit fake
replicas - to make them seem
more similar to the Prince
works.
Judge
Stein: OK, thank you all for
your arguments, I will decide
in due course.
The case(s) are Graham v. Prince et
al., 15-cv-10160 (Stein) and McNatt v.
Prince et al., 16-cv-8896 (Stein)
***
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