Judge Allows Two Lawsuits Against Richard Prince to Proceed

US District Judge Sidney Stein on May 11 refused to throw out two copyright lawsuits against Richard Prince stemming from the artist’s 2014 “New Portraits” series, as initially reported in Courthouse News. Prince had petitioned for a summary judgment—a ruling absent a trial—in both cases on the grounds that the contested works sufficiently transformed their source material and thus did not infringe on the copyright of the originals.

At issue are Prince’s use of screenshots sourced from Instagram, which he printed onto canvas and appended with his own comments, all without the permission of the original photographers whose work was depicted. Donald Graham, whose 1998 photo Rastafarian Smoking a Joint appears in one of the Prince works, originally filed suit against the artist in 2015. Photographer Eric McNatt in 2016 sued Prince over the latter’s use of a portrait of Sonic Youth’s Kim Gordon, originally commissioned from McNatt by Paper magazine in 2014. Prince attempted the fair-use defense and Stein in 2017 rejected it in relation to Graham’s suit, noting that “the primary image in both works is the photograph itself” and asserting that “Prince has not materially altered the composition, presentation, scale, color palette, and media originally used by Graham.”

The Graham and McNatt suits, both of which may now proceed apace, are similar to that filed against Prince by photographer Patrick Cariou in 2009. Cariou alleged that Prince had lifted photos from his 2000 bookYes Rasta for the artist’s “Canal Zone” series. Judge Barrington Parker of New York’s Second Circuit court in 2013 ruled that Prince’s treatment of the original images—which he variously cropped, splattered with paint, or overlaid with other images—changed them enough that the finished works did not infringe on Cariou’s copyright. However, Stein’s decision of last week arrived amid a changed landscape shaped by the proliferation of social media platforms.

“Portrait of Rastajay92 and Portrait of Kim Gordon make several modifications which are in the Court’s view, both minimal and insufficient to warrant the conclusion that they result in an aesthetic and character different plaintiffs’ original photographs,” wrote Stein in his opinion. “Defendants’ attempt to cast the images as satire or parody fails, and Prince’s stated purpose in creating these portraits has been both inconsistent and has only limited relevance in light of the similarities between the original and the secondary works.”

The court’s decision is likely to affect the outcome of another closely watched copyright case, this one involving a 1981 portrait of iconic rocker Prince taken by Lynn Goldsmith and appropriated by Andy Warhol in a 1984 screen print. The Supreme Court is expected to issue a ruling on the matter this year.

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