Can Other People Sell Your Instagram Photos?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Rainbow CameraArtist Richard Prince recently caused a stir by displaying giant reproductions of other people’s Instagram photos without first getting their permission – or even warning them.

As reported by The Washington Post, the photos, enlarged to six-feet tall, were displayed as part of the Frieze Art Fair in New York.

Almost all of the photos were sold to collectors for $90,000 each. Prince apparently has no plans to share that money with either the subjects of the photos or the photographers who took the original images.

“Appropriation Artist”

Prince has specialized in “re-photographing” for decades and is known as an “appropriation artist.” He takes photos he finds online or in magazines, ads, or other sources, and then alters or arranges them.

Prince was sued in 2008 by French photographer Patrick Cariou after Prince incorporated some of Cariou’s photos of the Jamaican Rastafarian community, torn from an art book, into paintings.

In the case of Cariou v. Prince, Prince claimed that his use of the photographs was “fair use” under copyright law. The district court disagreed, and ordered Prince and his gallery to deliver to the French photographer all of the works still in their possession.

The Second Circuit found that the paintings did make fair use of the photographs, in that they were “transformative.” The court noted that

If “the secondary use adds value to the original — if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings — this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”

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2 Live Crew

The court also noted other examples of transformative use of third-party intellectual property in art and entertainment:

For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.”[cite] Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising.

However, the court found that to have protection as fair use a new work doesn’t have to “comment” on the original, as long as it “transforms” it.

Commenting on 25 out of 30 of Prince’s paintings using the photographer’s work, the court sounded an awful lot like art critics:

These twenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ × 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.

In 2014, the US Supreme Court rejected Cariou’s petition for a writ of certiorari.

The Meaning of Art

According to Art in America, the parties settled the case. The article about the settlement reported that

The Warhol Foundation, along with the Robert Rauschenberg Foundation, filed a brief in the case in October 2013, siding with Prince. Their argument: the intellectual content and aesthetic meaning of works of art are not always visible to the naked eye without art-historical context. Their brief suggested that art historians, curators and other experts should have a say in the case.

If you have questions about copyright and fair use…

The Cariou case should not be taken to say that any “transformative” use of another person’s copyrighted work is fair use. Courts will take into account a number of factors, and a ruling on a claim of copyright infringement would depend on the specific facts of the case.

If you want to know more about this issue, you may wish to start by reading the court’s opinion at the link above, and then consult a copyright lawyer in your area.

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