How the Artist Richard Price stole from Instagram, and re-sold other peoples images for $100,000

Copyright Law & Instagram Art

Pushing the boundaries of copyright law, the latest exhibition by New York based artist Richard Prince is raising eyebrows in the art world. Why? Because he's selling canvases that feature other people's Instagram photos. The exhibition "New Portraits," first exhibited at the Gagosian Gallery in New York last year, showcase photographs of subjects that were not shot by Prince himself. But instead feature images that users of the social networking site Instagram have uploaded to the social media platform, that have then been printed out onto large canvasses, Each piece features an added comment from @richardprince1234 below the picture.

Gothamist reports, that the artworks are selling in New York for around $100,000 (£64,000) each of both famous people such as Kate Moss, Pamela Anderson, singer Sky Ferreira, art dealer Tony Shafrazi and model Lara Stone and non-famous people.

One subject of the photos, DoeDeere, confirmed on Instagram that Prince did not seek permission before showcasing one of her images. She posted on Instagram: "yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting). No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway."

She said the canvass featuring her portrait sold for $90,000 (£57,500).

For those acquainted with Prince's work, what he has done here – taking others' images and then displaying them as his own, is nothing new. Before Prince, artists like Andy Warhol did the same, using other people’s photographs in their works via the use of silkscreening. Yet Prince work remains too often controversial, showing very little evidence of any transformation of the original work, which raises copyright law issues, particularly with regard to issues of originality and authorship of his work. This is not the first time that Princes work has raised questions of copyright laws. According to Petapixel, Prince is: "notorious in the art world for taking other people’s work, 'appropriating' them as his own with various changes, and then selling them for large amounts of dough."

So is Prince actually breaking the law? If the artists were to make perfect replicas, it would be a clear infringement of the original artists' rights. However, fair use may apply if the work is "transformative." There is some suggestion that Mr Prince may have bypassed copyrighting laws by removing the images' original Instagram captions and adding his own words. But the question here with regard to the minor changes Prince adds to each original Instagram photo, is whether Prince’s additional comments, are "transformative" of the original work enough to meet the standard of fair use?

Unless the artists Richard Prince is formally challenged in court. We won’t fully know the legality of his actions. In 2013, a US court ruled that his "Canal Zone" artworks, which were based on earlier photos from photographer Patrick Cariou, constituted fair use. Prince’s usage of Cariou’s photos was determined to be copyright infringement back in 2011, but an appeals court overturned the ruling in 2013, calling the appropriation “fair use.” The courts taking into account the remix culture we live in.

[Left ] Cariou’s Original Photo [Right] Prince’s Artwork & Fair Use

Andy Warhol's Mona Lisa & Other works sell at Auction for over $150 million, but is there anything to smile about? Artists estate gets Nil; On Resale Rights, Copyright & The Law

This past week in New York, Christie’s latest contemporary art auction, generated a staggering $853 million. Among the art works sold was the late pop artist Andy Warhol’s work which fetched more than $150 million - with his iconic “Triple Elvis” selling for $81.9 million, “Four Marlons,” the artist’s interpretation of Marlon Brando’s from the movie “The Wild One,” selling for $69.6 million, and Warhol’s version of Leonardo Da Vinci’s “Mona Lisa” selling for $5.9 million.

But, is there anything to smile about?

Despite the late artists work doing so well at auction, the artist estate won’t actually get a cut of any of funds generated from the sale of his work.  Unlike composers, filmmakers, or novelists, visual artists typically do not share in the long-term financial success of their works because they are not entitled to earn future royalties. For the most part, this means that visual artists must live off initial sales of their original works. The artist resale right royalty provision (Droit de Suite), developed in the early 20th century by France, is said to address this.

Resale royalties or Droit de Suite are the rights of visual artists to receive a percentage of the revenue from the resale of their works in the art market. The right was originally provided for in Article 14bis ter of the Berne Convention for the Protection of Literary and Artistic Works 1948; the U.S. joined the Convention in 1989, however Article 14ter is an optional right and subject to the rule of reciprocity. Meaning that artists are only able to take advantage of the Droit de Suite if their work is sold in countries having such a right. In the U.S., only California has a Droit de Suite, the California Resale Royalties Act in 1976, which provides visual artists a royalty of 5% of the sale proceeds if the seller resides in California or if the sale takes place in California. But there is now a bill in Congress, called ART — American Royalties Too, which means this may be about to change. The new bill is proposing that 5 percent of every auction sale go to the artists or their descendants, with a cap of $700,000.

Works of visual art have been said to be produced on singularly, the value of which is said to be derived from its scarcity. Marie-Andree Weiss over at the IPKAT makes that point that when “France first adopted such a right in 1920, legislators were shown during the debate a drawing of a child in rags pointing at a painting that sold for a hefty sum at an auction and wailing ‘It’s one of Papa’s paintings!’” Without Droit de Suite visual artists, unlike other authors, are said to be excluded from the most significant profits that their works may generate over time, especially when a sale at auction increases in price.

In continental Europe, the EU has sought to harmonise the right by requiring all member states to implement a new common scheme from 2006 (via Directive 2001/84/EC).  Therefore, in the UK, along with copyright laws, visual artists in the United Kingdom (UK) also enjoy rights on the resale price of their work. (Under the Artist’s Resale Right (Amendment) Regulations 2011).  The Droit de Suite, or resale royalty right, entitles artists in the visual arts (or their heirs up to 70 years after their deaths) to a certain percentage of the resale price of their works after the original sale, whenever they are resold by commercial dealers or auctioneers. The resale royalty right is typically inalienable and lasts for the life span of the artist and 70 years beyond.

The royalty is subject to ‘compulsory collective management', which means that artists do not have to claim their royalty themselves; art market professionals are responsible for paying the ARR into a not-for-profit-share artists' collecting society, which then pays its artist members. Two such collecting societies operate in the UK: the Design and Artists Copyright Society (DACS) and the Artists' Collecting Society (ACS).

The Goss-IPgirl has always been a strong contender of turning ideas into livelihoods, but with ardent interest wonders, if an artist work is sold, and re-sold, is there a case to be made (Bourdieu & cultural capital) that their work increases in reputational value, which therefore means that any new works the artists produce will subsequently increase in economic value? And even if we accept that the Copyright Act in the U.S. fails to accommodate the particular nature of visual art, (as critics have pointed out) is it really the role of copyright law to ensure both statutory and market uniformity among authors?

Keen to know your thoughts here?

Man Charged With Vandalizing Bansky (Illegal Street Art) Images

Oh the irony,

The Goss-IPgirl has learnt that Prosecutors in Park City, Utah, are charging a man who they alledge defaced and vandalised two works of graffiti by Banksy, the pseudo British street artist.

"It's not every day I get to prosecute somebody for vandalising graffiti," Matthew Bates, the lead prosecutor, told the Wall Street Journal.

According to prosecutors, David William Noll shattered the glass protecting the Banksy murals in Park City on New Year’s Eve, and then further damaged one of the works, an image of a boy praying on his knees, with dark brown paint. 

Often used as a political voice for change - to raise awareness of social and political issues. Street art & graffiti has not only radically transformed the way we view our public pavements and walls but the Graffiti industry has turned into multi-million pound industry, now deemed worthy of the attention of even legitimising institutions such as the Houses of Parliament, which the Goss-IP discussed: here.

Building owners are often infuriated when they discover graffiti marring their property. But as a result of the ‘cultural currency’ that comes with the prestige of works by artists such as Bansky, in Park City property owners whose buildings have been tagged have spent thousands of dollars preserving them. Ken Davis, the owner of a coffee shop where Banksy stenciled an image of a videographer filming a flower, paid out $1,500 for bulletproof and glare-free glass to protect it, and hired a local blacksmith to forge a custom-made frame. That glass was allegedly shattered by Mr. Noll.

Even the courts seem to be looking more favorably on what is still consider to be illegal acts of vandalism:  What "Banksy does at the moment he does it may be graffiti," but the prosecutor, Mr. Bates, said, “his world reputation…ensures that it becomes a treasured attraction.” 

On a separate note and one that is interesting for this PhD student, this highlights the ways in which law shapes culture and culture shapes the law. How law itself is both a product of culture and how culture is at the same time a product of law. Noll faces a fine of up to $10,000 and up to 15 years in prison; according to Bates, a plea deal is being negotiated, with a hearing scheduled for the 15th of September. 

Isn't it ironic? Don't you think...

Copyright in squares? Agreement reached in legal row between artists

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Tobias Rehberger - New York Bar Oppenheimer

A  few years ago, German artist, Tobias Rehberger's known for his 1960s and '70s design styles and interesting interpretation of art and space, was commissioned to create a piece for the Berlin National Library.

The result was “Uhrenobjekt” (“Watch Object”) a giant black and white checkered painting that was concealed for almost year because of a copyright complaint brought by one of the UK's most important living artists, the British Op-Art painter Bridget Riley who claimed that the German artist Tobias Rehberger piece was a copy of one of her most famous paintings,movement in squares (1961).

Riley demanded it be removed from display in the library’s reading room, however Rehberger argued that the checkerboard pattern was part of the public domain.

Movement in Squares, 1961 Bridget Riley

Almost a year later, the case has now been resolved and the painting is back on display with a new title: “Uhrenobjekt nach Movement in Squares von Bridget Riley” (“Watch Object after Movement in Squares by Bridget Riley”).

According to an online art publication, “On 15 January 2014, Riley and Rehberger settled the case before the Kammergericht, the highest appeal court in Berlin. According to the settlement, Rehberger’s Clockobject may only be published and shown with the addition to the title ‘after Movement in Squares by Bridget Riley.

The Rehberger work – installed in the Rara-Reading Room in the Staatsbibliothek Unter den Linden (National Library, Berlin) – may only be shown there and can only be illustrated in an art historical context.”

Apparently, Bridget Riley waived all possible copyright claims regarding Rehberger’s Clockobject. In consideration and ‘as a sign of good will’ – as stated in the settlement – Rehberger will pay Riley the amount of €10,000. Riley will donate the money received from Rehberger to Space Studios, London, a charitable organization that she helped set up in 1968 and has been supporting ever since.

The Goss-IPgirl thinks this is an interesting case! Clearly the works are very similar but there are also differences. The checkerboard design is old and widely used, so the question arises: is it really possible for the British artist Riley, to lay a claim to copyright ownership in a black and white grid? According to one online art magazine, this is not the first time Riley has gone to court to protect her work – in the 1960s she famously sued a fashion house for creating a range of clothing that used one of her pieces as the pattern. In that case, she was unsuccessful.