If you live or dabble in the art world, you know about Richard Prince. An appropriation artist, in 2008 Prince opened a gallery show titled Canal Zone. The works consisted of photographs taken by photographer Patrick Cariou and published in 2000 in a book titled Yes, Rasta. The photographs depicted members of Rastafarian communities in Jamaica; Cariou had lived among these communities for years, slowly earning enough trust for the members to allow themselves to be photographed. Prince collaged Cariou’s photographs together, drew small additions on others in ballpoint - a cartoon guitar, a cigar, a blob - and slightly shifted the tones or clarity of others, but otherwise did not significantly alter the images. Canal Zone was exhibited at the Gagosian Gallery in New York, and Cariou sued shortly thereafter.

 The case worked its way up to the Second Circuit Court of Appeals, which sorted through the pieces in Canal Zone one by one, dividing them into fair and infringing. The Second Circuit held that the standard of “transformation” necessary for a use to be fair was quite minimal - Prince’s works only had to present a “new aesthetic” for them to be fair. Some of the pieces were held fair, and some were held infringing - generally, the more Prince had altered or added to the photograph, the more likely it was fair.

 Well, Prince is back in the news for his old ways. A new series of works entitled New Portraits, also exhibited at the Gagosian Gallery, depicts, in essence, Instagram posts of other artists’ works. Prince took screenshots of various Instagram users posting other photographers’ works, added his own Instagram-style comments at the bottom, printed the images on canvas, and offered them for sale for thousands of dollars. One of the photographers whose works were appropriated, Donald Graham, sued.


 Prince tried to get the case thrown out with a motion to dismiss, claiming that the works fall under the fair use defense - the same defense that saved many of the pieces in Canal Zone. But the judge wasn’t having it this time, stating that “Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.” This doesn’t mean Prince’s fair use defense is totally out the window, of course - this is just a motion to dismiss, and a fair use defense is a complex determination that should typically be decided later in the litigation - but it does mean that his old arguments aren’t cutting it in this case. It may be that the additions were too generic. The pieces in Canal Zone were altered by hand, often with a pen; there was a direct, creative contact between artist and work. By contrast the New Portraits were only altered with a prefabricated template, the Instagram border and comment zone.


 And let’s stretch that logical taffy for a moment. Prince’s additions to the New Portraits were, ultimately, very little labor; very few artistic decisions made - indeed Prince admits that the process is effortless; he takes a screengrab on his iPhone of an Instagram post, emails it to an assistant, and the assistant crops and prints it.[1] But at what point would the addition of an Instagram border and comments cross the fair use threshold and create a genuinely new aesthetic? Consider if an artist took one of Prince’s New Portraits and painted it - now the chances of such a use being fair are much higher. Much more labor has gone into the piece, many more artistic decisions; but even then a range of possible outcomes presents itself depending on how the artist paints the Portrait. A fully photorealistic painting might be less likely to be fair, despite the immense amount of work and skill poured into its creation, while a more abstracted, impressionist, expressionist, or otherwise distinctly stylized painting might be more likely to be fair. While the amount of labor involved in the alteration can be important to a fair use determination, it is not conclusive; what is conclusive is the distance between the set of information associated with the original work and the set associated with the altered work.

 The outcome of the lawsuit, and whatever decisions the Second Circuit may make on appeal this time around, will deeply affect copyright law. If adding an Instagram border and a caption to an image is sufficiently “transformative” to render such a use fair, then every image of a post on Instagram is fair, and by extension, every image of a post on Facebook, or Twitter, or Reddit is fair. But it is important to understand that, in large part, courts have given Prince’s arguments the time of day because he is an artist, because he leans on the foundational rationale for copyright law - the advancement of the arts - as his touchstone, and of course, because he exhibits his works in the Gagosian Gallery and offers them for sale to some of the most exclusive collectors in the world. If you or I were to take a copyrighted photograph and post it on Instagram, no amount of clever commentary would render our use fair, but because Prince can call his works art, and back up that claim with his commercial reputation as an artist, an extra layer of meaning is added to the works.

 And in thinking about Prince’s works, we must always remember that his pieces are valuable, selling for thousands and thousands of dollars, and that they are made more valuable by the legal controversy surrounding them. Prince’s pieces come with history, and nothing makes art more valuable than history. In many ways, Prince’s artistic medium is less photographs and canvas and more the legal landscape itself; he makes artworks that are art because they troll our system of fairness, and in that sense we must give him more credit than we might like to. We scoff at him because he makes works that are very little actual labor, but forget that a large part of the labor involved in his art is the litigation that it generates. Most artists’ material costs come in paints and canvas, but Prince’s come in legal fees.