Interesting facts in lawsuit filed against Richard Prince for Instagram based works Reply

The fine art photographer Donald Graham filed a complaint against the artist Richard Prince earlier this year for infringement of Mr. Graham’s exclusive rights in the acclaimed photographic work of art titled “Rastafarian Smoking a Joint” a copyrighted photograph.pic

An interesting twist to this lawsuit and claimed infringement is that the infringing use was part of a controversial show of Prince’s work at the Gagosian Gallery consisting of enlarged screenshots of people’s Instagram photos used without warning or permission – reportedly selling for $90,000 a piece.

After reading the complaint filed by Mr. Graham against Prince, here are a few interesting points that may factor into the next stage of this lawsuit or settlement:

  • Graham is a famous photographer whose work may have been known to Richard Prince before he included it in his show “New Portraits” (ironically titled) at the Gagosian Gallery.
  • Graham did not post his photo at issue to Instagram. (This is significant because by posting the photo to Instagram a user agrees to Instagram’s Terms of Use.)
  • Graham has never licensed the copyrighted photo at issue or made it commercially available for any purpose other than for sale to fine art collectors.
  • Prince and Mr. Graham’s wife exchanged tweets regarding the unauthorized use of the photo at issue. The Twitter exchange in a nutshell: Mr. Graham’s wife stated in a tweet that Prince appropriated Mr. Graham’s photograph & Prince tweeted a reply, “you can have your photo back. I don’t want. You can have all the credit in the world.”

Take a look at the images included in the “New Portraits” show (a small sampling above and a link below).  The photo at issue is clearly not your average profile picture or social media post. To me it stands out from the other images and seems possible that Prince might have known this image was Mr. Graham’s.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: The complaint Graham v. Prince. Artist Donald Graham’s website featuring the photo at issue: http://donaldgraham.com/PORTRAITS/5/caption/; a virtual tour of Prince’s exhibit New Portraits at http://www.richardprince.com/exhibitions/new-portraits_1/#/detail/10/; earlier posts on this controversial exhibition featuring Instagram photos http://wp.me/p10nNq-I0 and http://wp.me/p10nNq-En; more information on Instagram’s Terms of Use at http://wp.me/p10nNq-En; @iplegalfreebies and www.kasterlegal.com.

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