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Richard Prince Use of Kim Gordon of Sonic Youth Photo Called Classist Not Fair Use

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, July 28 – Artist Richard Prince's use of photographs for his own works was debated in a July 28 oral argument before U.S. District Court for the Southern District of New York Judge Sidney H. Stein. It gave rise the accusation of Prince's "classist" view of copyright law, that since he is the bigger or better known article, he can appropriate. Inner City Press live tweeted it:

Artist Richard Prince has been sued for his use of a photo of Sonic Youth's Kim Gordon in his “New Portraits” series on Instagram - Jeff Koons cited -

 Prince's lawyer: These are transformative works. There are important alterations. The colorization, the method of printing. Take Google Books, for example -- Judge Stein: Google Books is very different. Prince's lawyer: Yes, this is a fine arts case.

Prince's lawyer: Even plaintiff's own experts admit there are differences. The question is, Is there something new? Yes. Does it have a difference character? Yes. Documentary photo versus commentary on social media, selfie culture. Judge Stein: Let me ask a separate question. What does the defense say about the fourth factor? Prince's lawyer: Transformativeness has become a more important factor that it was 25 years ago. The Harper & Roe case, for example.

 Prince's lawyer: Kim Gordon only gave McNatt the rights for Paper Magazine, nothing more... There's no market to be adversely impacted. Both plaintiffs got more interested in their own work after Prince's use - they made more money.

 Prince's lawyer: In 2010, the license on Facebook was incredibly broad. Mr. Graham used the "everyone" button. Even people off Facebook could use it. Facebook changed that license years ago.

Prince's lawyer: He put that image on Facebook because he wanted to be well-known. It has worked for him. That has to be taken into account. On McNatt, the Instagram post, it was fair use. McNatt only claims his moral rights were injured, not copyright.

 Now Blum & Poe's lawyer Nina Boyajian: Fair use assumes that there is copying. The only question is whether they have a difficult character or meaning. Conceptual art is different from photography. Social media commoditizes everything.

 Judge Stein: It don't think you can argue photograph is purely informational and not art.

Boyajian: I'm not saying photography is a lesser art. These works are desired by different people. Not better people or worse people. Just different people.

Boyajian: If a person wanted Rastafarian art, you couldn't go to Mr. Prince. The work is off the market.  Judge Stein: The transformative issue is in dispute. Who's going to speak for the plaintiffs?

 Caitlin Fitzpatrick, for Donald Graham: This is about an appropriation artist taking the work of those for whom he has no respect. He does so with impunity. This not fair use, it's just minor alterations.  He took the heart of the original work, added gobblygook.

 Fitzpatrick: In this Circuit, there is not enough transformation here. Prince was asked, Were you offering any criticism of social media in your work? And he said, No. He said, I wanted to have fun. I wanted to make art.

Fitzpatrick: Recently a use of "who's on first" was found not to be fair use. The thing used has to be parody, not just used in a parody. Here Prince said he could have used any photo of a Rastafarian. So he fails under controlling precedent.

Judge Stein: But what about the First Amendment? Fitzpatrick: We're talking copyright law, fair use - the test is a reasonable, casual lay observer. 

Judge Stein: Prince has proved some market value by his name, like a "Birken bag," whatever they may be.

 Fitzpatrick: This is a classist view of copyright law. "I took your work and put my name on it, I helped you." We reject that.

Judge Stein: But if we look at it as economics... Where's the market harm to Graham?

Fitzpatrick: This was addressed in the Rogers case Fitzpatrick: His use on Twitter, just scanned photos to his 24,000 followers, is not fair use. Now he says it was commentary on the lawsuit. 

Judge Stein: Ms. Appleton, do you wish to speak for the Gagosians?
Tracy Appleton for Gagosians: No thank you.

Judge Stein: Right choice

Now the reply by Prince's lawyer Ian Ballon, from Montreal: Plaintiff's argument relies on this Court misapplying the law of fair use. Rogers v Koons is not the right standard. The Supreme Court changed the law in the Campbell case.

Ballon: Blanche v. Koons is directly on point. The 2d Circuit says the court should not substitute its view for that of the artist. Here, they had tried to submit fake replicas - to make them seem more similar to the Prince works.

 Judge Stein: OK, thank you all for your arguments, I will decide in due course.

The case(s) are Graham v. Prince et al., 15-cv-10160 (Stein) and McNatt v. Prince et al., 16-cv-8896 (Stein)


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