InstaThief’s Instagram Heist, ‘Fair Use’ & The Cheshire Cat

Instagrammers are still reeling from the latest flurry of notoriety that 65-year old Richard Prince has been able to stir up in the intellectual property pot, both on-and-offline. As a self-proclaimed painter and photographer, critics have found a number of  derogatory monikers to label him:  ’InstaThief,’ 'AppropriationArtist,’ ‘FairUseAbuser' with hashtags such as #PrinceofAppropriation and #geniustroll

Whatever you call him, this fox in sheep's clothing is laughing all the way to the bank. Why? Because, he thinks he’s found enough loopholes in copyright laws to not only permit him to push the envelope, but to allow him to garner sums of $90K or more, for each of the photos he's appropriated from others on Instagram.

How much of an Image can be altered to avoid Copyright Infringement?

This issue has become extremely important for those who engage on social media, particularly the users on the new social network Tsu,which places a major focus on original content devoid of copyright infringement.

Two well-known cases have laid down legal precedents and not surprising, one of them was a case against the infamous Mr.Richard Prince.

In 2008, Prince created "Canal Zone", a series of art works incorporating Patrick Cariou's photographs and Cariou v PrinceCariou v Princeexhibited them at Gagosian Gallery. His work involved basically copying the original photographs, but altering them with a variety of transformations.

These included increasing them in size, blurring or sharpening, adding content (sometimes in color, or objects like a guitar), and sometimes compositing multiple photographs with other works.

While the Southern District of New York in March, 2011 held that Prince’s works were infringing, in April of the following year, the Second Circuit reversed the SDNY’s decision stating that most of Prince’s works were indeed “transformative” to a “reasonable observer" and therefore quailed for ‘fair use.’

On September 15, 2014, the Seventh Circuit addressed a similar in the Kienitz v Sconnie Nation case. According to the legal argument, Sconnie Nation was found making t-shirts displaying an image of  Madison Wisconsin mayor Paul Soglin, using a photo posted on the City’s website that was authored by photographer Michael Kienitz.

This court looked to the Cariou v Prince decision, but complainedKienitz v Sconnie NationKienitz v Sconnie Nation that its approach to appropriation art looked only at whether a work was “transformative” and didn't fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106. 

This court analyzed the market effect, looking to see if the contested use was a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The judge focused on what portion of the image was left and in so doing ruled in favor of the t-shirt maker. The court's decision stated:  “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is 'almost extinguished.'” 

“What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

So to understand how Prince pushed past the ‘Cheshire Cat’ case, it's probably best to take a step back, to understand some of the established underpinnings of copyrighting, infringement and 'fair Use.'

You’re Right to Copyright

In its broadest definition, a copyright protects certain types of “original works of authorship” whether published or unpublished. Copyright will grant the author of the work the legal right to determine how or whether the work will be reproduced, distributed, displayed, or performed, as well as the right to produce derivative works based on the original.

However, what many people are unaware of is that a copyright is ‘automatic’ and requires no formal registration. A creator automatically owns what he creates and is not required to take any other action to claim a copyright. You can however indicate your ownership by including the phrase “copyright by,” or by using the symbol "©", in addition to the date and your name.

If you want additional protection, you can also register your ownership with the U.S. Copyright office for a small fee which would provide you more legal leverage in taking someone to court for copyright infringement.

Is Content on the Internet Copyrighted?

Yes, everything on the Internet is copyrighted. It is a common misconception that anything posted to the Web is in the public domain. While it is true that documents on the Internet (and in other digital formats) are easier to reproduce and distribute than other media, the ease of reproduction and distribution does not change the copyright. Digital content is still copyrighted, and copying or reproducing it without permission may be illegal.

When is 'Use' Fair?

Copyright law allows portions of a copyrighted work to be used without the author's permission for specific purposes. This is referred to as "fair use."

Fair use allows for portions, or in some cases the entirety, of copyrighted works to be used for purposes such as criticism, parody, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. But over the years, folks like Mr. Prince have pushed for a wider interpretation.

The Prince of Thieves

So how does this legal framework support or detract from Prince’s appropriated images from Instagram? Has the Wild, Wide West of the World Wide Web evolved into endless lawlessness or are boundaries expanding just because they can. The Prince of Thieves is surely leading the charge for those that favor that are in that second camp. Pillage, Pinch & Possess could very well be his brand's slogan, if he was prone to self-effacing humor.

According to a number of sources, Prince is “notorious in the art world for taking other people’s work, ‘appropriating’ them as his own with various changes.”

In the past he’s appropriated images of American icons ranging from the Marlboro Man to Brooke Shields and even once published ‘The Catchder in the Rye’ with his name on the jacket instead of JD Salinger’s.

His Instagram thefts involve taking screenshots from the site, blowing them up and jet-printing them onto six-foot canvases where the only changes to images are cryptic remarks and/or catch-phrases by Prince, added to the comment threads.

When he presented this month at the Frieze Art Fair in Manhattan, Prince exhibited a new set of Instagram pictures, mainly taken from the feed belonging to SuicideGirls, a community of models and burlesque performers with a punk rock aesthetic.

Doe Deere, one of the women in this particular batch of photos did not seem as outraged as the public, even though she wasn’t compensated one red penny for her image provided Prince with $90K in revenues. In fact her response was so non-plus, one has to wonder why?

“Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it!” noted Deere.

So has ‘Fair Use’ expanded it’s boundaries?

Actually there is precedent for what Prince did. For those who remember the famous work of Andy Warhol when he capitalized on both the Campbell Soup Can and Marilyn Monroe imagery, neither the company nor the actress were ever compensated for the use of their identities. However, he was never sued by Ms. Monroe or her estate, and instead of the Campbell Soup Company litigating, they piggy-backed off of Warhol's re-invented work in subsequent ad campaigns — in essence to exploit his work for their own promotional purposes. Sort of like a quid pro quo!

Prince v Instagram

So does it all come down to a ‘smile’ or will Prince v Instagram become the landmark case to finally put the InstaThief in check? Highly unlikely, because as a third-party, Instagram's TOS clearly state that “Instagram users own their content and Instagram does not claim any ownership rights over your photos.”

So the onus falls back to the creators, the artists, authors and bloggers to take the initiative and fight the good fight for getting more clarity on the boundaries (or lack thereof) of ‘fair use’ in the 21st Century.

Some creators might favor leaning on the “Cheshire Cat” precedent since some would argue that the original image was almost unrecognizable once it was reduced to a smile. Others would argue the inference coming from that image can be clearly tied back to the original source?

For instance, wouldn’t Leonardo DaVinci have had something to say about that topic in his day, if every artist that succeeded him ripped off Mona Lisa’s enigmatic smile and applied it to their portraits? Ah, but sadly Maestro — we are sorry to inform you — today, some 600 years later, anyone can recreate your Mona Lisa, since copyright laws only protected her for 75 years . . . but that’s a ‘public domain’ issue . . .  and legal fodder for another day . . . and a future blog!

May 28, 2015
by Anonymous

fantastic article Ron - I

fantastic article Ron - I look forward to discussing it more on tsu with you :)