Is This Art? - Instagram, Copyright and Unauthorised Use of Photographs

Artist Richard Prince has opened an exhibition named "New Portraits" in an art gallery in the US. The art works displayed are re- photographed Instagram images taken from the artist's Instagram feed. The blown up images have a caption added underneath the photographs and are selling for $100,000 each.

Some people are calling the artwork "genius trolling" and consider that the works raise a question about our curiosity for the narcissistic images of others. However, some of the subjects of the images are unhappy about the unauthorised use of the images. The artist did not ask permission from the subjects of any of the photographs and he has not shared any of the profits made.

Copyright In Photographs

The author of a photograph automatically owns copyright in the image. If someone challenged the use of the images which are the subject of the artwork Richard Prince may be able to mount a "fair use" defence. In the United States fair use permits limited use of copyrighted material without acquiring permission from the owner of the material. Examples of fair use are criticism, parody, reporting, teaching and research.

The main factor taken into account when assessing fair use is whether the recreation of the work has been transformed by adding new meaning or value. Richard Prince's use of the images may be lawful if the recreation of the image by being blown up with a caption added is considered sufficiently transformative.

As yet no one has challenged Prince's use of the images in court. However, one of the subjects of the images has been selling his own versions of the new portraits by re-photographing the images and adding another caption. These images are being sold at a fraction of the cost of the new portraits with the proceeds being given to charity.

If you are affected by any of the matters raised in the article above please do not hesitate to contact us on 0191 281 4000 or at legal@mcdanielslaw.com