Richard Prince has made the news, again, with the unveiling of his most recent work. Basically, he has taken screen shots of posts to Instagram, removing the original text and replacing it with his own, and blowing up the images. The pieces have sold for between $90,000 to $2.5 million.
Legal analysts have been questioning whether his changes are transformative enough of the original work to qualify for the fair use defense. An artist may use the work of another if the artist adds new elements such that the work is an entirely new work. This is what is known as transformative in copyright law. Prince is quite familiar with this defense, after the Second Circuit ruled that his work, taken from the photographs of Patrick Cariou, was transformative. (See Cariou v. Prince.) Many legal scholars felt that the Second Circuit had lowered the bar for what was considered transformative, and that changes which were rather minimal were enough to pass the test.
It seems that Richard Prince is testing how low the bar can go. (Or perhaps not. He has already publicly stated that he doesn’t care about copyright. I would be interested to see if he changed his tune when it is his work that is being infringed!) So legal scholars are discussing whether merely changing the text at the bottom of an Instagram post and blowing up the image is enough to be transformative, and whether he has finally left himself open to an infringement suit.
But many are missing the obvious. Photography and film often have more than one copyright involved. While the copyright of a photograph belongs to the person who took the photograph (and the copyright office has made it clear a person must be a human being, no monkeys allowed), if the photographer takes a picture of another copyrighted image, a painting for example, then the photograph has two copyrights involved. The copyright in the photograph, and a copyright in the painting that is the subject of the photograph. Therefore, there is a copyright in the Instagram post, and a completely separate copyright in the photograph used in the post. Looking at the photograph alone, all Prince did was blow it up. He made no changes to the photograph. Merely blowing up an image cannot be transformative. If it was, what was to stop anyone from taking a Picasso print, blowing it up, and calling it transformative? It would completely undercut the policy of copyright law.
If the owners of the photographs (who may be separate from the subject of the photographs), wish to challenge Prince’s use, they would do well to remember the copyright in the individual photograph, and not just the Instagram post as a whole.