IP Law Daily, COPYRIGHT NEWS: Appropriation artist Richard Prince agrees to $900,000 copyright infringement award, (Jan 29, 2024)

By Matthew Hersh, J.D.

The settlement agreement with two photographers comes on the eve of trial.

A prominent appropriation artist has agreed to pay nearly $1 million to two photographers for using their works without permission as part of art gallery pieces. The agreement comes on the verge of a long-awaited jury trial in the federal court for Manhattan and was formalized by the entry of a matching pair of judgments (here and here) in favor of the photographers and enjoining the artist from making any further use of the works in question.

The lawsuits are two of many controversies to arise out of the New Portraits series, an Instagram-themed collection that contemporary appropriation artist Richard Prince created in 2014. The artist created the series by randomly mining Instagram for posts that he found interesting. He would then blow those posts up to a canvas-like size, add some comments of his own below the post, do some modest cropping of the post, and then shape the entire result to give it the appearance of an over-sized iPhone. The series created immediate backlash from the subjects of those works, who complained that intimate details of their lives had been shared to the world or that their celebrity had been used to further the artist’s work without their consent. Criticism of the series also came from the photographers who had originally captured the images that Prince appropriated without their permission.

Two of the artists who sued Prince for the latter conduct were Donald Graham and Eric McNatt. In the case of Graham, the work used by Prince was a photograph entitled Rastafarian Smoking a Joint. Graham took that photograph in rural Jamaica in 1996 and markets prints of it through his studio as well as a Paris gallery. In the case of McNatt, Prince borrowed a photograph he had taken of Kim Gordon, a member of the alternative rock band Sonic Youth. McNatt has licensed that photograph to two publications, Paper and Vogue. The photographers sued the artist and the gallery in which the works were displayed for copyright infringement.

The court refused to dismiss the lawsuit on the grounds of fair use in a 2017 order. (IP Law Daily covered that decision here). In May of last year, the court denied summary judgment in favor of Prince. The same court later granted partial summary judgment in favor of the gallery, finding that it could not be liable for indirect profits nor for profits it might obtain in the future by disposing of the works. (IP Law Daily covered those 2023 rulings here and here).

The matching two-page orders enter judgment against Prince and in favor of the two photographers and enjoin Prince as well as the gallery from “reproducing, modifying, preparing derivative works from, displaying publicly, selling, offering to sell, or otherwise distributing” the photographs. The orders also enter damages for five times the retail price of each photograph—an amount put by press reports, inclusive of court costs, of $900,000.

The cases are No. 15-cv-10160-SHS and No. 16-cv-8896-SHS.

Attorneys: Christopher Peter Davis (Cravath, Swaine & Moore LLP) for Eric McNatt. David James Kappos (Cravath, Swaine & Moore LLP) for Donald Graham. Richard Aframe Edlin (Greenberg Traurig, P.A.) for Richard Prince, Blum & Poe New York, LLC and Blum & Poe, LLC. Matthew Seldin Dontzin (Dontzin Nagy & Fleissig LLP) for Gagosian Gallery, Inc. and Lawrence Gagosian.

Companies: Gagosian Gallery, Inc.; Blum & Poe New York, LLC; Blum & Poe, LLC

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