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Can You Commit Copyright Infringement By Using Your Own Work?
Mrs. Grundy writes: Notorious appropriation artist Richard Prince has been in the news again with his show consisting of screen shots of other people's Instagram photos printed as large inkjets on canvas. These prints have reportedly sold for $90,000. In 2013 Prince successfully defeated a lawsuit for a previous appropriation by convincing the court his work was 'transformative' and it's likely this new work would also find a sympathetic ear in the court. Among the photographs whose work he used this time were several from the Suicide Girls Instagram feed. In response, Selena Mooney, cofounder of Suicide Girls, began offering exact replicas of Prince's pieces that used her photographs for a mere $90. Photographer Mark Meyer looks at the bizarre possibility that if Prince's use of Mooney's work is transformative and fair, Mooney's might be copyright infringement.
It's simple, if it's copyrighted, it's copyrighted. It doesn't matter that it's a derivative of your own earlier works. That a screenshot (of someone else's work) is copyrightable is the problem. If you were to copy his method to come to a similar (or even identical) work, you'd be legal, but to copy his exact work, it doesn't matter that it's transformative of your original work.
These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.
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The whole act of putting the almost exact replica from the original copyright owner is a commentary on the issues of the weirdly selective broad reach of copyright. Thus it should be protected free speach.
It is if you have the right lawyers.
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> screen shots of other people's Instagram photos printed as large inkjets on canvas
This is no way that this is "transformative."
Nor "art":
> appropriation artist Richard Prince
Appropriation (art)
Antisthenes: "Wisdom begins by examining the words/names." - excuse my English, i am (slightly...) better with my Greek!
TFA specifically mentioned that this would be unlikely to work. However, you could argue that the irony in the concept of 'copyrights all the way down' might be sufficiently transformative so as to enjoy copyright protection.
Thus, it would really be 'copyrights all the way down'. Or perhaps recursion.
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"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
I completely agree and wish that I had mod points. I see her response almost as a parody of the ridiculousness of the entire situation. I don't know how a court would decide, but I would definitely argue that the response is transformative in the same way as Prince's work. The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince’s.." and that would make the argument that they are a new work of art very difficult.
The key to this is that Mooney is "transforming" Prince's "work" in exactly the same way he "transformed" hers. If her use is infringing, so is his. The "transformation" of simply making a large printout isn't going to fly. Copyright doesn't depend on the size or transmission method.
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It's called "self-plagerism," and it most commonly occurs when someone publishes a paper in a journal that claims the copyright. Then, if the author uses their text without approval, it's a copyright violation.
Just add their logo in the bottom corner of all the movies and call it art.
But of course the law is about playing favorites ...
The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince's.." and that would make the argument that they are a new work of art very difficult.
How so? They are alternatives, substitutes even. That is the point. The price for that piece of art is arbitrary and inflated by artificial scarcity, which she denounces and replaces with accessible art for the masses, thus showing us the true colors of the commercial art world, which, even when faced with appropriation art, still favors scarcity over impact. If the number of copies is so important to the art establishment, then how is changing the number of available copies not an artistic act? And to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it. (I'm not being facetious here: Obviously her selling these pictures is a comment on the appropriation of her own pictures, and should be seen in the same light. She did not open a business where you can buy replicas of just any piece of art, just replicas of the pictures related to her own pictures. That it elicits the most revealing response imaginable proves her insight.)
They didn't exactly duplicate his pieces, they did to his pieces exactly what he did to theirs: copied the piece exactly except for adding their own comment(s) at the bottom. That'd put him in a bind, he can't win against them without guaranteeing everyone whose work he appropriated a win against him. IMO Meyer's fear-mongering on that point.
There's another twist too. The only part Prince significantly changed is the comments on the images. But the comments and the copyrights on them aren't owned by the Instagram users whose images Prince used, they're owned by the people who posted them. Certainly I can use work A for purposes of commentary on work A, but can I use work A for purposes of commentary on work B by a different creator?
so much of what passes for art these days is degenerate shit.
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You sound like a lawyer, so I want to give the benefit of the doubt here, but I don't understand where you get the idea that fair use is just immunity.
Copyright infringement is unlawful. Fair use is not an infringement of copyright. So if it's not infringement, how is it unlawful?
Keep in mind that to many artists the place you see an object is a big part of the work. Simply by converting the photos from an electronic format on Instagram into large canvas prints in a gallery he transformed the works. There are actually entire schools of art devoted to taking random shit, placing them in galleries, so everyone can stand around speculating about what you meant when you decided to display your bed*. And if if the new photo counts as a transformation then it's a completely new work and the original owner's copyright does not apply. In other words he can almost certainly get as many Doctors of the Fine Arts as he wants to write impassioned essays defending his right to do this shit.
Always remember: the law is 100% logic, 0% common sense.
That said, I'm pretty skeptical that the Courts would buy it. The case he won he actually changed a guy's pictures to the point that you can instantly tell the Prince version from the Cariou original even when both of them are digital reproductions on your monitor.
*The bed in question sold for 150k GBP top a collector, who just sold it for $4,351,969 so clearly this bed is art and not pretentious BS from lazy people who mistake a tendency to over-analyze with intelligent commentary.
so much of what passes for art these days is degenerate shit.
The technical term you're looking for there is from German, "entartete Kunst".
... to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it.
Brilliant! Everything is part of the performance! I really love it. It takes it to a whole new level of meta.Thank you for that insight.
I had never thought of framing it like that. I had approached the situation from the assumption that her actions were of anger/spite, but you're absolutely correct. I wonder how deep this rabbit hole can go...
He adds comments below them, and this he claims makes it both transformative and art. The problem I have, though, is this idea that "transformative" somehow means its no longer a derivative work, because the rights of original creators are supposed to be protected in derivative works under the Berne Convention.
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