"Artist" prints other Instagram users' photos, sells them

[redheadbaker]

How in the WORLD is this "fair use"? 

gothamist.com/2015/05/21/artist_steals_instagram_photos_sell.php

Right now you can purchase someone's Instagram photo for around $100,000. The money won't go to the photographer, however, it will go to "artist" Richard Prince, who has blown up and made prints of other people's Instagram photos for his series titled "New Portraits." The previously private show at the Gagosian has been a part of Frieze.

According to Petapixel, "Prince is notorious in the art world for taking other people’s work, 'appropriating' them as his own with various changes, and then selling them for large amounts of dough." And no, he did not get permission for these prints, which are screenshots of the images with one addition from Prince, "a short message [he] posted as the last comment on each one."

Artnet addressed the exhibit in a piece titled "Richard Prince Sucks," where they write: "In another image, he writes under young singer-songwriter Sky Ferreira's portrait of herself in the passenger seat of a red sports car: 'Enjoyed the ride today. Let's do it again. Richard.' If she had a snide response to the leering comment, we never learn what it was. Like a true troll, Prince always gives himself the last word."

https://instagram.com/p/2ygLRoR2hV

One Instagram in the show was taken by DoeDeere, who posted an image from the show earlier this week, adding:

"Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting). No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it!"

DIY Photography notes that Prince has been "rephotographing" since the 1970s, and if anyone does go after him, it won't be his first time in court. In the past, however, he's won, since his work (including these Instagrams) falls under fair use.

[darnkatz]

How the fuck is that fair use?

[thecatinthehat]

Wtf! This is ridiculous. And why is anyone paying 100k for copied art?!?

[josieposy]

And people thought I was nuts for closing my account.

[pixy0stix]

I don't think you hold the copyright to images posted on instagram. That they're uploaded as fair use. (I haven't looked into instagram's policies though.)

[MauMau]

I think it's fair use because he basically edits the text below the photo. Deletes the Persons original one and then adds his own dumbass ironic text. From an article I read last night. I think on Huffpo

It's pretty disgusting. I don't think that it should qualify as fair use.

[MauMau]

May 23, 2015 12:19:06 GMT -5 pixy0stix said:

I don't think you hold the copyright to images posted on instagram. That they're uploaded as fair use. (I haven't looked into instagram's policies though.)

If you say you own it and Instagram says you own it. Is it still consider fair use for others? Here is something off their blog. I'm not too familiar with this stuff.

[pixy0stix]

It seems their policies changed in 2013.

But yes, you can still hold the copyright but since it's shared it becomes fair use.

[redheadbaker]

May 23, 2015 12:32:13 GMT -5 pixy0stix said:

It seems their policies changed in 2013.

But yes, you can still hold the copyright but since it's shared it becomes fair use.

What? Fair use is using someone's photo in commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. Not sale for profit. 

[heyjude]

How is this okay when the courts found the LDS business of editing out bad words and scenes from movies and then selling them was not okay?

[blink]

I am not comfortable with this. It's like he's trying to be cool, but instead he is just an ass. I mean when James Franco is not creative/artsy than you, out is kind of bad.

[heyjude]

May 23, 2015 12:55:39 GMT -5 redheadbaker said:

May 23, 2015 12:32:13 GMT -5 pixy0stix said:

It seems their policies changed in 2013.

But yes, you can still hold the copyright but since it's shared it becomes fair use.

What? Fair use is using someone's photo in commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. Not sale for profit. 

I don't think this is accurate.

[mrsdewinter]

So does this mean if a pro photographer posts their work on social media, anyone can do anything with it under fair use? Or that I can resell their work as long as I put a comment with it? That doesn't seem right.

[redheadbaker]

May 23, 2015 13:20:29 GMT -5 mrsdewinter said:

So does this mean if a pro photographer posts their work on social media, anyone can do anything wit it under fair use? Or that I can resell their work as long as I put a comment with it? That doesn't seem right.

I was about to post almost the exact same thing. 

[heyjude]

May 23, 2015 13:27:47 GMT -5 mp said:

May 23, 2015 13:10:21 GMT -5 heyjude said:

I don't think this is accurate.

Commercial use is one of the tests of fair use. Selling an image for profit is commercial use. This is why I'm really confused and frankly intrigued that this is considered fair use.

But I don't think simply making a profit kills fair use in all cases.

[mominatrix]

you know, I'm nowhere NEAR as pissed off at the "artist" as I am by his customers.

for the artist guy, it's capitalism at it's finest. He's selling a comodity, charging what the market will bear. If I printed off posters from Instagram and tried to sell them for 9K (never mind 90K) I'd be laughed off ebay.

This guy's customers have bought into the bullshit that is a lot (though nowhere near all) contemporary 'art'. These works have value not because of the intrinsic value or beauty of the work, but because he's famous for being famous, and gallery owners think that has value.



It's such a load of bullshit.

[msmerymac]

This is pretty awful, but I find it kind of hilarious and ironic that one of the photos he's re-selling is that of Doe Deere. She's known for basically repackaging and selling items that she does not produce or invent. She's not a good business person and is also quite dishonest herself.

ohdeardoedeere.tumblr.com/

[meshaliuknits]

May 23, 2015 13:01:36 GMT -5 heyjude said:

How is this okay when the courts found the LDS business of editing out bad words and scenes from movies and then selling them was not okay?

This was a thing?

[bears]

I don't get how this is fair use, but sampling music from other artists isn't in some cases.

[secretlyevil]

This is some bullshit.

[ChillyMcFreeze]

This is not fair use as I know it. And I think I know it pretty well.

Fair use has four litmus tests: purpose and character of use, nature of the work, amount used, and market effect. The purpose of this guy's use is not education, criticism, or parody, which are the most common fair uses. The photos are purely creative, not functional or fact-based, so they're more protected. The amount used is the whole damn thing and, furthermore under the law, the "heart" of the work. That's almost always the only grounds you need for a copyright infringement suit. And it certainly damages the market for the copyright owner when a known quantity with access to NY galleries sells these works. So I don't see in what world this could possibly be fair use.

[nsl]

May 23, 2015 16:14:03 GMT -5 meshaliuknits said:

May 23, 2015 13:01:36 GMT -5 heyjude said:

How is this okay when the courts found the LDS business of editing out bad words and scenes from movies and then selling them was not okay?

This was a thing?

This was a HUGE thing.  I used to live just up the road from one of the places that did it.  You could bring in your DVD (ETA: or VHS tape, because it was the 90's), list which scenes you wanted cut, and they'd do it within a few business days.  My AP European History teacher used them to edit her copy of Queen Margot so we could watch it in class.

[origami]

May 23, 2015 13:30:37 GMT -5 @soudesafinado said:

May 23, 2015 13:27:47 GMT -5 mp said:

Commercial use is one of the tests of fair use. Selling an image for profit is commercial use. This is why I'm really confused and frankly intrigued that this is considered fair use.

Right. There is a reason Creative Commons exists. Imma ask on Tuesday and see what our attorney says. I mean he has won cases but I need to understand what the argument was thatthrew this in his favor.

yah I don't know anything about the laws, or Instagram for that matter. But with Flickr the person who uploads it decides what rights other people have to it. So the photos say whether they can be used for non-commercial purposes, for commercial purposes, can be edited by others, or it not to be used without permission, etc. Is Instagram not like that?

Not that this could stop someone from stealing it, but I thought if you stole something you weren't given access to the author could come after you. That would be so crappy if it weren't the case.

[twohearted]

I have no legal background, but I wonder if satire or parody come into play since that can be what makes something fair use. The ironic captions are the art? The original images are worth basically nothing so it doesn't infringe on their worth either. I think that is a factor.

[ChillyMcFreeze]

May 24, 2015 6:21:15 GMT -5 twohearted said:

I have no legal background, but I wonder if satire or parody come into play since that can be what makes something fair use. The ironic captions are the art? The original images are worth basically nothing so it doesn't infringe on their worth either. I think that is a factor.

The original work doesn't have to be inherently valuable to constitute fair use. It's a matter of, if the copyright owner wanted to sell them one day for any value, would the use by someone else damage the market? And here, it would. They're no longer novel.

[heyjude]

It seems to me the original pictures are now significantly more valuable.

FTR, I don't think this seems legit because I don't see the difference between these photos that were edited and sold and then the movies that were edited and sold.

But the article says he has won court battles before so he must have a solid legal basis for his use.

[heyjude]

More info on the now defunct "clean flicks."

en.m.wikipedia.org/wiki/CleanFlicks

[heyjude]

Clean Click court ruling; with discussion of fair use:

www.eff.org/document/clean-flicks-district-court-opinion

[redheadbaker]

May 24, 2015 8:57:57 GMT -5 heyjude said:

But the article says he has won court battles before so he must have a solid legal basis for his use.

I read that copyright infringement cases are very subjective, so each is decided independently, so I don't know how the article can assume that this case is fair use, just because he's won other copyright infringement cases. 

[heyjude]

May 24, 2015 9:21:15 GMT -5 redheadbaker said:

May 24, 2015 8:57:57 GMT -5 heyjude said:

But the article says he has won court battles before so he must have a solid legal basis for his use.

I read that copyright infringement cases are very subjective, so each is decided independently, so I don't know how the article can assume that this case is fair use, just because he's won other copyright infringement cases. 

I think because he does the same thing. This is "artistic" MO.