Pop Art Genius or Thief? Artist appropriates others’ work without consent

More than fifty years ago, Andy Warhol appropriated the image of a Campbell’s Soup can for a painting series, helping launch the pop art movement.

Photo 1 - Warhol

Photo by Wally Gobetz/Flickr Creative Commons

The Campbell Soup Company didn’t bring legal action against the artist when the paintings debuted in 1962, though the company now has a licensing agreement with the Warhol Foundation.

In the decades since Warhol’s commercialism-inspired silkscreens, a proliferation of intellectual property debates have ensued.

Today, one artist is fueling controversies on appropriation—with an added complication: social media content ownership.

Richard Prince is an American painter and photographer whose art is considered re-photography, a style of work which uses appropriation as its own focus. Artists recreate, repurpose, and pull from the works of others and the worlds they depict to create their own work.

Appropriation art isn’t new. Artists have been borrowing and transforming others’ work for centuries, with appropriation art gaining popular traction in the United States in the 1970s and 80s.

The difference between that time and now is that our new digital reality has blurred the lines of ownership, privacy, and protection for intellectual and artistic property.

What’s mine is mine… until it’s yours

Richard Prince’s exhibition at New York’s Frieze Art Gallery in May 2015 featured screenshots of other user’s Instagram photos for which he did not seek permission before recreation, nor did Prince give them advance notification that their content would appear in his exhibition in New York.

The 65-year-old artist is being called a “rip-off artist” and “Instagram hijacker.”

Photo 2 - Prince

Photo by Robert McKeever/Gagasoian

Some of the Instagram pieces, according to CNN, sold for $100,000. None of the artist’s profits were shared with the original curators of the content.

Vulture magazine’s art critic called Prince’s method “genius art trolling,” as it has sparked viral arguments about ethics and legalities in art and the Internet.

“How to Sell Other People’s Instagrams for $100,000 and Get Away With It” reads one headline; another invites you to “Meet the Artist who steals your Instagram photos and sells them for $90,000.”

Instagram says individuals maintain the rights to the photographs uploaded to their site, but according to a company statement, it’s up to content owners to “enforce their legal rights” on their own.

But do users have a valid case?

Fair Use

Jim Astrachan, intellectual property lawyer and author of The Essential Intellectual Property Primers: The Law of Trademark, Copyright and Advertising, says it all comes down to fair use.

“The basis of whether he [Prince] has a right or does not have a right to use the photos of another, regardless of source, is whether the use is a fair use, being an exception to the exclusive rights of a copyright holder to exploit her own works.”

“One of the things a court looks to is whether the new work that is based on the old work is transformative into something new and different in use and purpose from what the photographer created—or whether the new work is merely a replacement for the old, original work and serves the same purpose,” Astrachan explained. “Some hate this artist, an appropriations artist, but you need to decide for yourself whether the new work is transformative, whether it becomes something new and different. If so, it may be a fair use.”

“The idea behind copyright grant of monopoly,” Astrachan added, “is to confer a public benefit by encouraging creation of works on which others can build, thus fair use and transformation.”

Transformation, appropriation, and regulation

But how do we define transformation and appropriation?

The artist’s attempt to make the Instagram works transformative is, at the very least, interesting…

For each photograph, Prince added his own “Instagram comment” to the screenshot. This addition is the basis for his defense for transformation.

It seems like a thin but plausible argument, and it’s also likely that he’s betting few users are willing to take on the costs of a possibly futile legal battle.

Whether Prince is within the means of fair use of others’ content is still up for debate.

Not helping his case is the fact that he has been sued in the past for copyright infringement. As reported by the Washington Post:

In 2008, French photographer Patrick Cariou sued Prince after he re-photographed Cariou’s images of Jamaica’s Rastafarian community. Although Cariou won at first, on appeal, the court ruled that Prince had not committed copyright infringement because his works were “transformative.”

As for the novelty of the legal issues brought on by artists like Prince in the digital world, Astrachan says, “I like to say the issues of law are not new. This might be a map from 250 years ago. The difference perhaps is the technology and the ease by which I can share my intellectual property—and you can appropriate or misappropriate it and manipulate it. Add to that the fact that some people think ‘If it’s online, it’s free.’ But this artist knows better.”

At what point does borrowing without asking permission become stealing?

Perhaps the latest development in this timeworn issue is the pervasiveness of who can be appropriated. As Vulture notes, in the social media age “we’re all as visible as, well, a can of Campbell’s Soup… It just takes an artist with the guts (or amorality) to go for it, like Prince. So as long as we choose to become brands ourselves, through Instagram posts or Facebook updates and tweets, our identities are liable for theft.”

More often than not, users are quick to agree to a site or app’s terms of agreement, though they rarely read the fine print. And most aren’t aware of specific rights to ownership or privacy they have surrendered by use of the platform—that is, until they become aware that their data is being sold or their content is being redistributed.

The grey area of ownership

So, who owns the content we share on the Web: the user or the platform itself?

Once a photograph leaves the storage of a device and is published on the Web via an app like Instagram, is it forever after the property of Instagram, and therefore available to any and all Instagram users to view, comment on, and reproduce without the original photographer’s consent or knowledge?

The extent of content theft and its consequences remain murky, though they are nowhere as dubious as the protection users assume exists for their published content. And to that end, it would seem both parties are at fault.

What’s more, should users be offended or feel violated when someone is so moved by their work that they incorporate it into their own artwork—or should they be flattered?

If the purpose of art is to elicit a feeling, Prince’s work has succeeded in doing just that, as evidenced not only by the attendance of his exhibition, but by the sale of his work and the controversy surrounding it.

Reagan Warfield, Graduate Student

Master of Arts in Emerging Media

Loyola University Maryland 

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