Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling

Photograph from the complaint showing the book printed to accompany the exhibit.

On Thursday, final judgments were issued in a pair of copyright infringement cases that arose from a now infamous 2014/2015 project, New Portraits, where appropriations artist Richard Prince displayed Instagram photos and user comments as a purported commentary on social media and art. The two nearly identical final judgments were entered in favor of the photographer plaintiffs’ claims that Prince and the exhibiting galleries willfully infringed on their photographs, and the court dismissed all the defenses raised – including the fair use defense – with prejudice.

Despite a proliferation of inaccurate news reports and social media activity following the conclusion of these two cases, the final judgments do not serve as a clear victory for or against the application of the fair use defense in a post-Warhol world.

“I could not decide as a matter of law that Mr. Prince made fair use of Mr. McNatt’s photo,” U.S. District Judge Sidney Stein said during a January 19 pre-trial conference, according to public transcripts. During the conference hearing, Stein made clear: “It’s a mixed question of law and fact, and I most certainly did not conclusively decide anything on any of the elements of the fair use test.”

Bringing Instagram to the Gallery

Photographers Donald Graham and Eric McNatt filed lawsuits in December 2015 and November 2016, respectively, against Prince for using their photographs as part of the series. The lawsuits also targeted the two galleries, Gagosian Gallery and Blum & Poe, where the works were exhibited and sold.

To create one of the works, Prince took a screen shot of an unauthorized user upload of Graham’s Rastafarian Smoking a Joint by an Instagram account named “Rastajay92”. The other photograph Prince used, Kim Gordon 1, was a portrait of musician Kim Gordan of the band Sonic Youth that was taken by McNatt. Prince’s process involved manipulation of the Instagram app to highlight specific comments, using basic photo editing tools to crop and edit the screen shots, and then printing physical copies.

The original complaints for both lawsuits also targeted additional acts of copying through the creation of a companion catalog for the exhibition and including photographs on Prince’s website that show the gallery exhibit, and the gallery websites promoting the exhibit. Graham also alleged an additional claim of infringement through the creation of a promotional billboard.

“There are not two standards of fair use – one for the famous and one for everyone else,” said David Marriott, counsel for the photographers. “There is no celebrity plagiarist principle that comes out of this, either.”

But Brian Sexton, counsel for Prince, said of the conclusion to more than eight years of litigation, “Prince did not admit willful infringement, and neither Judge Stein nor a jury ruled that Mr Prince’s works were not fair use.”

An Effective Settlement

In May 2023, U.S. District Judge Sidney Stein wrote an opinion denying the defendants’ motions for summary judgment. Both lawsuits were headed to trials which were scheduled to start in a matter of days. Instead, the parties negotiated and reached an agreement on the final judgments on the eve of the first trial starting.

Settlements are nothing new for Prince. A similar case, the widely known Cariou v. Prince, involved the unlicensed used of a photographer’s work and ended up settling after the Court of Appeals for the Second Circuit remanded a portion of the disputed works back to the lower court.

Photograph from the complaint showing the billboard advertising the exhibit.

As part of these two final judgments, the defendants are ordered to pay damages calculated at five times the sales price for the works, plus costs. The Kim Gordon work by Prince was offered for sale at $90,000 by Blum & Poe and subsequently purchased by a member of the public. The Portrait of Rastajay92 was reportedly offered for sale at $38,000 and purchased by Lawrence “Larry” Gagosian. Richard Prince, not the galleries, will pay $450,000 in damages to McKnatt, $200,000 in damages to Graham, and a combined $250,000 in court costs.

The final judgments also prohibit any further exploitation or distribution of the works. It’s unclear what, if anything, can be appealed despite the lack of a traditional settlement agreement and what amounts to an outcome that’s more like a consent decree. No formal opinion will be released, either.

Fair Use in a Post-SCOTUS Warhol World

The copyright world is intently watching for when the next court decision on fair use will come around following last summer’s Supreme Court decision in Andy Warhol Foundation v. Goldsmith, Lynn, et. al. Perhaps Prince and the gallery defendants were not interested in testing the waters of fair use, or having an outcome that becomes strong precedent?

“The January 25 judgments in the Graham and McNatt copyright infringement cases involving Richard Prince are among the most important fair use decisions in decades,” noted Copyright Alliance CEO Keith Kupferschmid in a statement, adding: “The outcome in both cases is extremely significant and provides us with insights into how last year’s Supreme Court decision in Andy Warhol Foundation v. Goldsmith will impact future copyright cases involving fair use.”

Fair use continues to be a hotly watched area of copyright law due to the potential implications that any new decisions may have on the legality of generative artificial intelligence systems and their outputs. As Sam Eichner wrote for IPWatchdog, “[Warhol] suggests that using an identical work, commercially, to do something that artists can and have already licensed, raises serious doubts about the strength of fair use as a defense to allegedly infringing creations of generative AI platforms.”

The cases are Graham v. Prince, et al. (which originated from the Copyright Alliance’s pro bono program) and McNatt v. Prince, et al.