Artist Richard Prince’s Installation of Instagram Screenshots Are Not “Transformative” Enough To Be Fair Use

Artist Richard Prince (“Prince”) appears to have blatantly stolen photographs from not one but two photographers, both featured in his 2015 “installation” called, “New Portraits”. New portraits feature large images designed to look like Instagram posts. An “installation” is a collection of three-dimensional visual artworks, displayed within a space.

Photographer Donald Graham filed a lawsuit against Prince in 2016, over the use of his photo of a Rastafarian smoking a joint. Prince had screenshotted an Instagram post of Graham’s photo, and enlarged it. Photographer Eric McNatt also filed a lawsuit against Prince in 2016 over Prince’s use of a photograph of Kim Gordon, bassist of alternative rock band, “Sonic Youth.” 

On May 11, 2023, U.S. District Judge Sidney H. Stein for the Southern District of New York denied two motions for summary judgement that were filed by Prince arguing that his use of the photographs were “fair use.” Judge Stein held that Prince’s modifications to the photographers’ works were not “transformative enough” to be covered by the doctrine of fair use. This doctrine allows the use of certain copyrighted material for purposes of criticism, commentary, parody, and more.

Prince tried to convince the Court that the lack of visual changes made to the photos was overshadowed by the change in context, effectively transforming the photos into a larger “ode to social media.” However, Judge Stein rejected this argument. 

However, on May 18, 2023, the Supreme Court issued a landmark decision in the Andy Warhol v. Goldsmith case, rejecting a “fair use” defense raised by the Andy Warhol Foundation. The court found that the use of Goldsmith’s1981 photo of Prince in a silk-screen portrait was not “transformative” enough.

Though Richard Prince’s “ode” argument is based on the “new expression, meaning, or message” standard, Judge Stein held that Prince’s use of the two photos in “New Portraits” was too similar to the original to qualify as “fair use”. Authors note: with few expectation, the fair use doctrine is just another way for people to steal from artist. Fortunately, the trend is to not find the fair use doctrine applicable. 

The cases are McNatt v. Prince et al., case number 1:16-cv-08896, and Graham v. Prince et al., case number 1:15-cv-10160, in the U.S. District Court for the Southern District of New York.

McNatt and Graham are represented by David R. Marriott, David J. Kappos and Christopher Peter Davis of Cravath Swaine & Moore LLP.

Prince is represented by Ian Charles Ballon of Greenberg Traurig LLP.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.



To answer one of the questions you had written on the revisions, this judgement was a few days before the Warhol one, so it was not influenced by the judgement. 

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