Appropriation, Fair Use, and Creating New Work

Gothamist Article Richard PRINCEBy Joe Wallace. Image via Gothamist.com

I recently stumbled across a large amount of vitriol aimed at artist Richard Prince and a collection of his work sold, according to Gothamist.com, at Gagosian Gallery. Gothamist reports:

“Right now you can purchase someone’s Instagram photo for around $100,000. The money won’t go to the photographer, however, it will go to ‘artist’ Richard Prince, who has blown up and made prints of other people’s Instagram photos for his series titled ‘New Portraits.'”

Gothamist contradicts itself in the article, starting with the lurid headline, “Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery”. Later, the Gothamist piece by Jen Carlson states:

DIY Photography notes that Prince has been “rephotographing” since the 1970s, and if anyone does go after him, it won’t be his first time in court. In the past, however, he’s won, since his work (including these Instagrams) falls under fair use.”

So the “stealing” headline is not only misleading, but potentially actionable in court should Prince decide that bringing a libel suit might be in his best interests. (I personally am guessing not, since that would be a distraction from his work and given the lucrative nature of it, likely not worth the bother.)

Fair Use is a difficult, murky legal swampland full of danger for any artist. Shepard Fairey found that out the hard way–his own woes in his Hope trial (the one that brought Fair Use back into the spotlight over Fairey’s use of an AP photograph as the inspiration for his Barack Obama Hope campaign poster) had more to do with his actions to conceal what turned out to be fair use of the AP image than for the actual legality of his actions in connection with the poster’s creation. According to several sources, Fairey destroyed evidence and allegedly fabricated some…which is what wound up costing him the most in a legal sense.

All the venom directed at Richard Prince for the “Instagram show” (as I’ve heard it called) seems to have a great deal to do with the price tag on the works and the fact that his source images was Instagram rather than his own camera or imagination. The shadow of the “my five-year-old could do THAT” argument looms long over the negative press and comments I’ve seen. Some of us know just how dumb THAT argument is.

And some of us do not.

What’s NOT present in my admittedly non-extensive, yet semi-obsessed reading of these and related articles? Any discussion at all about what Prince’s work actually MEANS.

I should know more about Richard Prince, who has gone to court many times, it seems, over Fair Use, and has been quite a trailblazer in several respects for artists who work in a similar vein, appropriating existing work, recontextualizing it, and giving it a new type of existence far outside the original intent of the source material.

Prince and Christian Marclay, in my mind, inhabit some of the same headspace when it comes to appropriation, remixing, reusing, and recontextualizing existing media to new ends. Not that their methods, intent, or outcomes are remotely the same, mind you. But there is plenty of treading over Fair Use territory that is historically –and legally–important to observe for future reference.

I can’t claim to know what Prince’s intent was in making the series so hurriedly attacked by the Gothamist article, but the dots I connect in my own thinking about the work calls back to the outrage over Facebook’s assertion or perceived assertion that it owned every single thing published via Facebook. Hand in glove with that, I tend to think about the incredible amount of hand wringing that goes along with discussions of privacy online. I have always gotten a laugh from people who constantly post images of their intimate and personal lives on Instagram, Facebook, Twitter and the rest, yet complain that their privacy has been compromised somehow by the latest Terms Of Service changes on any give social media platform.

Richard Prince may or may not be thinking of those issues when he sets out to do his work, but that work has certainly made me think of all that and more.

In closing, back to the Gothamist piece–the most glaring error made is the lack of context for Prince’s work. Whether through ignorance or a willful disregard for appropriation in the canon of fine art, outsider art, street art, and many other avenues, the Gothamist article reduces the entire issue down to a click-bait style headline and a heavily “either/or” proposition; the Richard Prince collection in question is “either” fine art “or” a complete ripoff. It’s an intellectually stunted argument, to be sure, and not overtly made. It’s a “read between the lines” proposition. But there’s bias against the work from the start, and we get little more than a poison pen diatribe. One notable exception happens toward the end of the article where one of the subjects of the “Instagram show” is quoted as being completely uninterested in legal action against Prince.

We can’t really expect much more than that from the type of “reportage” found on the Internet these days, but I am grateful the Gothamist piece exists as it is an excellent object lesson in how not to approach complex matters in print. That lesson will be ignored, of course, but it’s good that it exists anyway.