Popular Culture

Rephotographer Selling Prints of Other People's Instagram Photos for $90,000

Art and law

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collectorsdaily.com

Pharrell Williams can't write a song with a 70s soul feel and cowbell without getting sued, successfully, by the estate of Marvin Gaye. Williams, of course, denied he had copied elements of Gaye's song "Got to Give It Up" when coming up with "Blurred Lines," but the Gaye estate insisted despite the two songs being played in different keys, with different bass lines, and different lyrics and melodies, "Blurred Lines" had copied the "feel" of Marvin Gaye. It's a dangerous precedent that could have a chilling effect on musical development. Another route is what Sam Smith's attorneys did when Tom Petty's attorneys said one of Smith's songs sounded like one of Petty's songs—give him a co-writing credit, a cut of the money, and move on. Smith said he'd never heard of Tom Petty's "Won't Back Down." But Williams was fighting a good fight—defending not just his right to produce a song like "Blurred Lines" but the rights of all creators to create work without fear that it "feels" too much like something done in the past.

Williams couldn't argue his work was "transformative" because he denied the one song had anything to do with the other. In music it may not always help. Williams is also from the generation of hip-hop producers who came up after the 1991 case that transformed the rap environment by limiting the ability of producers to sample songs without paying royalties. It wasn't transformative enough. Such restrictive copyright laws don't comport with the stated intentions of copyright law—securing a limited time for artists to have the exclusive right to their creation while promoting the progress of the arts.

Not every artistic field has a copyright climate as restrictive as the one being constructed by the music industry. Via the Washington Post:

This month, painter and photographer Richard Prince reminded us that what you post is public, and given the flexibility of copyright laws, can be shared — and sold — for anyone to see. As a part of the Frieze Art Fair in New York, Prince displayed giant screenshots of other people's Instagram photos without warning or permission.

The collection, "New Portraits," is primarily made up of pictures of women, many in sexually charged poses. They are not paintings, but screenshots that have been enlarged to 6-foot-tall inkjet prints. According to Vulture, nearly every piece sold for $90,000 each.

How is this okay?

The Washington Post goes on to explain that Prince has been a "rephotographer," who photographs other photographs and alters them to make them his own, since the 1970s. He faced a lawsuit after photographing a French photographer's photos of Jamaica's Rastafari community, but won on appeal

The Post also has a comment from Instagram:

"People in the Instagram community own their photos, period. On the platform, if someone feels that their copyright has been violated, they can report it to us and we will take appropriate action. Off the platform, content owners can enforce their legal rights."

Prince's artwork upsets a lot of people, like the Post writer, who also points to Prince's embrace of comments critical of him. All too often, when there are different standards in different domains, a lot of people will insist that whichever standard is worse ought to be applied across the board. Williams' "Blurred Lines" case (separated from the unlikable Robin Thicke) seems more sympathetic than Prince's. But demanding photographers and visual artists be held to the same stifling intellectual property environment as recording artists would be unfortunate and wrong-headed. Social media may be the low-hanging fruit of pushing copyright boundaries, but Prince is gathering that fruit and making a dollar, or 90,000, off of it. There's a lesson there about complaining and doing. For an art crit take on Prince's Instagram work, read here.

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  1. All I have to say is “Now, why didn’t I think of that?”

    1. Because if you had thought of it, you would have dismissed it as too fucking stupid to succeed.

      1. This

      2. Touch?.

        I also wonder who these people are with $90K to blow on such things.

        1. The real skill is in developing the line of complete and utter bullshit (along with the persona) required to sell it. I’m not nearly sociopathic enough to do it.

          1. +1 Andy Warhol.

          2. I don’t know. All art is utter bullshit in some sense. Maybe great painters have more skill and talent, but they are still selling useless things for lots of money.

          3. For those unfamiliar with the arc of Richard Prince’s long career, his new Instagram-based portraits might appear to be cheap shot throw-aways, a simplistic (and often vulgar) exercise in provocative, opportunistic cashing in. But if we step back from the knee jerk demonization and look more closely at what Prince has been doing on Twitter and Instagram in the last few years, it becomes immediately clear that these images aren’t just one-offs, but merely a handful of examples from a larger fire hose of ongoing commentary and audience participation by Prince, made up of equal parts standup comedy, performance art, and cultural intervention.

          4. Yes, but it still begs the question, where do people stupid enough to fall for that jive come up with $90,000 per print? Are they brilliant everyplace else but their whits leave them when they enter a gallery?

      3. Like my grandpa would tell me, “If it were that easy no one would work for a living.”

        Guess there are exceptions.

      4. I still don’t get it. If the buyers want large photos of trashy instagram girls, why didn’t they just join instagram and get the photos for free?

      5. you would have dismissed it as too fucking stupid to succeed

        Because Prince is obviously unsuccessful and dismissed by the art buying community.

    2. That’s why Prince makes the big bucks.

  2. According to Vulture, nearly every piece sold for $90,000 each.

    I find this extremely hard to believe. Has this been verified? And, no, the artist saying so doesn’t count.

    1. It sounds like the way the mob was laundering money in Mickey Blue Eyes.

      1. Isn’t that the main reason paintings are worth so much. Originals are an assets with arbitrary worth that don’t go down once they’ve gone up. They are a good way to store and trade wealth on the down low.

        1. Originals are an assets with arbitrary worth that don’t go down once they’ve gone up.

          Outside of a pretty short list, really, of Big Names, this isn’t true. The art market has fads and bubble like any other.

        2. With contemporary art it is more that people are making bets on who will be worth millions in the future. They know that a lot of the bets won’t pay off. Mostly.

    2. I agree with this. I’m highly skeptical. Why on EARTH would someone pay $90,000 for something that:

      1: Isn’t original?
      2: Could have been literally be printed at home?

      Say what you will about the rich, they want exclusive. They’re willing to pay $400,000 for a wristwatch because few other people will have it. Why are you paying $90,000 for a 13 x 19 HP photojet paper of an image screen-grabbed off the internet?

      1. Gawd! Its like you don’t even understand art. Its not about the *materials* – a couple pieces of scrap wood and a jar of piss are cheap – its about the *meta*.

        1. Well, it is. I’m not saying that these pictures are great art. But there is a whole lot more to art than technical skill and materials. There are many thousands of people in the world who can produce excellent, top quality paintings or sculptures or photographs.

          1. Like the girls on instagram.

          2. yeah, a lot of people confuse art with craft.

        2. I know you’re crackin’ wise, but there IS no *meta* with this. Even Andy Warhol posterized and colorized his cribbed artwork. This is literally a cut-and-paste then the print button got hit. I think the artist is trying to generate buzz.

          1. Well, even that is sort of a meta-statement about art.

            My only criticism is that it’s already been done, first by Duchamp and others in the early 20th century and later by Warhol on an industrial scale. The invention of the readymade was a powerful statement about art and how it is produced and consumed. But you really only need to make that statement so many times.

            1. I don’t judge a creative process, no matter how bad the outcome. Sure, that crappy trashcan with some wire coming out of it that got moved around by the janitor* to the horror of the artist was… art. I get it. I don’t need to have Jackson Pollock explained to me, even though fake Pollock’s sell for $17,000,000 because no one can really tell the difference.

              But these kinds of things say less about the artist and far more about the buyer. I’m not complaining about the marterials used here, I *am* complaining about the meta, or lack thereof. Because tomorrow, I’ll have one of those $90,000 pieces of art on my wall and no expert will be able to tell the difference.

              *tried to find a link to that story but I couldn’t.

              1. I think we pretty much agree on these things. And these pieces don’t say anything that hasn’t been said better in the past.

              2. I know art when I see it.

            2. I wouldn’t say that the repurposing is the statement so much as the medium. Statements in art don’t change that much, but the medium does.

              1. I’d say it’s a bit of both. Though, as I say, the statement isn’t all that interesting anymore. Still, even now I would say that these pieces wouldn’t be interesting at all (even to silly art collectors) if not for the re-use/re-purposing of the images.

                Nice to see that there are at least a few other people here interested in art beyond pretty pictures that look like what they look like.

                1. I try not to infer too much about an artist’s statement because I’m of the mind that the artist doesn’t get the final say in the interpretation of their work. (incidentally, I also think the weakest art tends to rely too much on the artist’s statement) I know what you mean though, sometimes it’s obvious what the statement is.

                  I’m a designer and illustrator, so yes I love art. I find analysis of art in the context of different subjects, like history and economics especially interesting. There is a lot of BS in art, but it’s possible to dissect it and learn from it like any field. This book contains some great analysis of it, if you’re interested. I’ve never seen anything like it since I first read it about 10 years ago. http://www.amazon.com/Why-Art-…..0252069501

          2. Warhol’s secret was adding a a dick to his signature and hanging out with weird folk.

    3. I find it hard to believe also; $90k seems a bit low. Here are past auction prices:

      http://www.phillips.com/search/1/?search=Richard Prince

  3. Ceci n’est pas une Instagram photo.

  4. So when are James Brown’s heirs going to sue the guys behind Uptown Funk?

    Because that song sounds a hell of a lot more like his stuff than Blurred lines sounded like Gaye’s stuff

  5. The Petty case – while the songs are similar, they certainly are not interchangeable – I wouldn’t listen to the one if I couldn’t get the other. Two different songs that sound somewhat alike. And the reason they sound somewhat alike is they are both pretty simple in the melody which has a flattened gospel feel to it – in other words two very different people could come to the chain of notes by starting with a more punctuated gospel starting point and flattening it out for a more poppy result.

    1. If copyright laws are to exist, they shouldn’t have anything to do with originality. They should simply prevent people from taking business away from creators by copying their work. As you point out, no one is not buying Marvin Gay recordings because of the new song. That right there should be enough to have the case dismissed. There is no confusion among consumers and the Gaye estate has lost nothing.

      That and the fact that all but the most avant garde music is copying to some degree the sound and feel of older music. Music that doesn’t do that is almost never popular, at least to begin with.

      1. Damages are supposed to reflect lost sales of the holder of the copyright.

        Congress fucks with this by allowing statutory damages where the holder of the copyright doesn’t have to prove any financial loss. (See the ass fucks at RIAA.)

  6. Don’t hate the player, hate the game.

    I nominate this guy for Pimp of the Year.

    1. Honestly, I like the game more than the players.

    2. I agree 100%. Again, this speaks more about the buyer than the seller.

    3. agreed. Although I don’t care for his art aesthetically, I love art that mocks the culture that surrounds it. Same reason I like David Shrigley http://www.davidshrigley.com/i…..rtists.jpg

  7. I didn’t know Instagram’s photos had that high resolution. I was expecting shit so blocky it looks like Minecraft. /gilfoyle

    1. The artist is known for rephotographing images so they look like originals, then changing them just enough to avoid copyright infringement.

    2. liked the Silicon Valley reference, btw

  8. On one hand, kudos to him for coming up with yet another way to fleece upper class twits.

    OTOH, you obtained the source material in violation of the agreement between the creator and the site. Fuck you. Pay up.

  9. So Shepard Fairey really fucked up when he lied about stealing the AP photo. His defense should have been that he rephotographed the AP photoshopped his photo.

  10. So the lesson is, if you do not want your personal creative efforts to benefit parasites and charlatans, bury them in a hole.

    1. All artists are charlatans.

      1. Perhaps, but they usually only use bullshit they have created on their own.

  11. At least one of the groups that had their images used in this are turning around and selling their own prints… this seems a better way to deal with it then dragging it through the courts.

    1. I like that. It’s a nice “Fuck you too.”

  12. From the Gagosian Gallery who represents Richard Prince:

    http://www.gagosian.com/legal

    1. 2. Proprietary Rights. As between you and Gagosian Gallery, Gagosian Gallery owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components, audio clips, video clips, software and software concepts and documentation and other material on, in or made available through the Site (“Site Material”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. Under no circumstances will you have any rights of any kind in or to the Site, other than the right to use the Site in accordance with these Terms and the limited fair use described herein. Fair use of copyrighted material includes the use of protected materials for non-commercial educational purposes, such as teaching, scholarship, research, criticism, commentary, and news reporting. Unless otherwise noted, you may download or print text and image files from this Site solely for such purposes without Gagosian Gallery’s written permission, provided that you comply with the following conditions: (a) the content may only be used for personal, educational or noncommercial purposes; (b) you must cite the author and source of the content; (c) none of the content may be altered or modified; and (d) you must comply with all other terms or restrictions which may be applicable to the individual file, image or text.

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