Only yesterday we wrote that it appears to be becoming increasingly common that journalists are using photographs without the permission of the photographer. We now report on an interesting ongoing case on this point. US-based photographer Richard Prince, who uses third party images from social media sites and has been sued for copyright infringement.
Mr Prince is described as an appropriation artist. His modus operandi is that he takes images posted on social media sites such as Twitter or Facebook and blows them up so that they can be hung in galleries and subsequently offered for sale to the public. The only change made to the original images tends to be a comment by Richard Prince which did not appear on the original image posted to social media. Some argue that this coupled with changes to the size of the images to make them suitable to be hung in galleries is sufficient to allow Mr Prince to rely on the fair use defence by virtue of his alterations to the work being transformative.
Fair use is a defence to copyright infringement. There are 4 factors that a Court will consider when deciding whether use of a copyright work was fair. These are; (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the copyright work which has been taken; and (4) the effect of this on the potential market. The Supreme Court in the USA has previously acknowledged that the more transformative the new work (the 1st factor), the less significant the other factors will be when deciding on fair use.
Richard Prince has previously been sued for copyright infringement in a similar situation, but successfully defended the claim on the basis that the alterations he made to the works were significant, thus being transformative and allowing him to rely on the fair use defence.
The present case
Mr Prince is now being sued by David Graham for copyright infringement of Mr Graham's photograph: 'Rastafarian smoking a joint'. Mr Prince is being sued alongside the gallery which is exhibiting his work and the gallery owner. This is the latest in a series of cases concerning copyright and photography. We have previously commented on the use by journalists of photographs without permission and also in Germany, Wikimedia is being sued by a museum for putting photographs of works of art displayed in the museum on to the internet.
It will be interesting to see how these cases develop in 2016 and what effect they may have on copyright protection for photographers both in the UK and further afield.
If you have been affected by any of the issues raised above please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or firstname.lastname@example.org.Posted by: in: Case Law, Copyright, News