The purpose of Copyright Law as enumerated by the United States Constitution is to “promote the progress of Science and useful Arts.” Artistic works are protected by copyright so that artists will be incentivized to keep creating. Appropriation art is a style in which the artist takes an existing object and uses it with little to no transformation. Appropriation art seems antithetical to copyright’s original purpose because there is a lesser incentive to create when others are permitted to steal.
In 2017, photographer Donald Graham brought suit against artist Richard Prince, Gagosian Gallery, and its owner, Larry Gagosian, for copyright infringement based on Prince’s failure to seek Graham’s permission to use his 1998 photograph Rastafarian Smoking a Joint to create Prince’s Untiled (Portrait). Prince is known for making appropriation art, in which he reproduces and modifies derivative works without permission. Untiled (Portrait) features a screenshot of an Instagram post of Rastafarian Smoking a Joint with a comment by Prince underneath it. Prince used this technique to create this picture along with thirty-six other works for the 2014 exhibition “New Portraits” at Gagosian’s gallery.
Prince asserted that his appropriation of Graham’s photograph was a fair use under 17 U.S.C. § 107 and moved to dismiss Graham’s complaint. After applying the fair use test to Prince’s application of Graham’s work, the district court found that Untitled (Portrait) was not transformative as a matter of law because Prince did not make significant aesthetic alterations to Graham’s photograph. Because fair use requires a fact-finding inquiry, the district court denied Prince’s motion, and the case proceeded to the discovery phase.
It seems unfair that he should be able to so blatantly copy another artist’s work if one considers the situation alongside Copyright’s theoretical origins. There are three predominant theories of intellectual property rights: Lockean labor theory, originally concerning real property, proposes that an individual’s labor entitles them to ownership of the object of their labor; Personality Theory, most closely associated with Margaret Jane Radin, proposes that certain objects are tied to someone’s identity or personhood and are thus an extension of that person; Utilitarianism suggests that if the cost of copying is lower than the cost of creating, the creator will not be able to recover costs and thus be disincentivized from creating in the first place. This would have the effect of stunting creativity at large. United States Copyright law has rejected the former two theories, yet opinions in Copyright cases still discuss all three.
An application of Lockean Labor Theory to Graham’s Rastafarian Smoking a Joint would suggest that the work Graham put into the making of the photograph should warrant its protection in copyright law. To create the portrait, Graham took a two week trip to rural Jamaica in 1996 to capture members of the Rastafari community in the place of the movement’s origin. Travelling so far to create art has monetary costs and takes a substantial amount of time. These factors are indicative of the extensive labor Graham put into his work.
An application of Personality Theory could suggest that this photograph is interwoven with Graham’s personhood and this connection entitles him to protection. Before they would allow him to take their photographs, Graham maintained that he had to first gain the trust of members of the community and convince them of his artistic intentions. These feats are indicative of not only more labor Graham put into his work, but also the idea that it was Graham as a person to whom the Rastafari people were giving their permission. The photograph is therefore tied into Graham’s identity, not Prince’s.
Finally, Utilitarianism proposes that if people like Prince are allowed to appropriate and financially benefit from other artists’ work, there would be little incentive for Graham to photograph because the money he put into his trip to Jamaica would not be recovered. Indeed, Graham noted that he does not generally license his fine art photography in order to protect its art market value. These structural financial incentives are key to a behavioral economics understanding of intellectual property law, which some argue is the primary policy preference shaping Unites States copyright law.
There is an argument that Prince’s copying is actually beneficial to those whose works he has appropriated. For instance, his exhibition may draw attention to both Prince’s art and the original works he has manipulated, therefore bringing monetary value and artistic acclaim to both the original and Prince’s works. The lawsuit itself supplements the attention given to both the original and new art by bringing publicity. Furthermore, there may exist artistic value in Prince’s work because of its messages. The court quotes Prince as suggesting these may include “a commentary on the power of social media to broadly disseminate others’ work,” or a “condemnation of the vanity of social media.” In this way, Prince’s Untiled (Portrait) – and more generally, his entire New Portraits exhibition – epitomizes the Postmodern movement in art because it utilizes copying to potentially comment on the death of authorship and it trashes fine art in order to lower it into the realm of pop culture and commodification.
But even considering these arguments for Prince being able to copy Graham’s (and others’) work, is this “appropriation art” the kind of work we as a society should allow? Is it actually good for not just the art market, but art itself? More time and historical perspective is needed to tell if Prince’s work is worth significant value, artistic or otherwise. But until history is able to weigh in, my gut reaction is that allowing Prince to copy for the sake of his “art” ultimately protects only laziness.
Maggie Reinfeld is a J.D. candidate, 2020, at NYU School of Law.