In the space of a week two slightly surreal US-based copyright spats ProCounter has been following have had further developments.
Firstly, serial photo appropriator/stealer, Richard Prince, will head to court after one of the photographers who had a photo from Instagram re-used by Prince filed a lawsuit against him. And secondly, that bloody monkey selfie copyright story from 2014 has inched closer to a verdict, with a judge concluding that the crested black macaque cannot own copyright to an image it took of itself.
Art? An image of Prince’s print featuring Graham’s photo of the Rastafarian, hung at the Gasogian Gallery in NYC. Soure: Artnet
The Prince of thieves
Controversy was rife last year after Richard Prince revealed his latest exhibition ‘New Portraits’ at the Gasogian Gallery in New York City. The exhibition consisted of prints which were screenshots of Instagram users’ post with ‘minor changes’ which Prince was selling for upwards of US$90,000, including a photo captured by Australian fashion photographer Peter Coulson.
Armchair copyright lawyers (and legitimate ones) all weighed in as to whether Prince was infringing copyright, with many speculating whether the ‘Fair Use’ defence would stand in court. ‘Fair Use’ allows an artist to take the work of another and transform it to have a new meaning.
Prince has previously entered the legal arena for a similar act of appropriation. He initially lost the case and then appealed the verdict and won, successfully arguing the work was ‘fair use’.
However he might not get away with it this time around.
New York-based photographer Donald Graham filed a federal complaint on December 30, 2015 against Richard Prince, the Gasogian Gallery and Larry Gasogian, owner of the gallery, for unauthorised use of one of his images.
The image is one of Graham’s most iconic images, Rastafarian Smoking a Joint, and shows – as suggested – a Rastafarian lighting a marijuana cigarette.
While ProCounter cannot access the complaint file, Artnet can, and reports it says the only modifications consist of ‘minor cropping of the bottom and top portions’ with the copyrighted material being left ‘fully intact’. The only point of difference is the actual Instagram interface in the outside of the print – and Prince also added the comment ‘richardprince4 Canal Zinian da lam jam’ with the ‘fist’ emoji.
Graham reportedly spent two weeks trekking the mountains of Jamaica in May 1996 with his photo equipment ‘in order to capture photographs of the Rastafarian people in their surrounding environment’, the complaint says.
Prince ‘achieved notoriety in the “appropriation art” industry for his blatant disregard of copyright law,’ it says. ‘Mr. Prince consistently and repeatedly has incorporated others’ works into works for which he claims sole authorship without obtaining permission from, or providing compensation, recognition or attribution to, the original work’s author.’
It also notes that in 2011 Prince said ‘Copyright has never interested me. For most of my life I owned half a stereo so there was no point in suing me, but that’s changed now… So sometimes it’s better not to be successful and well known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared.’
Monkey business
Last year activist group PETA, People for the Ethical Treatment of Animals, filed a lawsuit against British photographer David Slater which bizarrely claimed ‘Naruto’, the Indonesian crested black macaque, owned copyright to a selfie it took in 2011.
But in 2014 – well before PETA filed suit – Slater fought to have Wikipedia take the image down from its website. Wikipedia, which offered the image for free public use, ignored his request as the monkey shot the picture, and given Slater initially said he didn’t intend for the photo to be taken, claimed that no one owned the copyright.
Screenshot of Wikimedia page in 2014, which states ‘the file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is versed’. Source: Wikimedia
US District Judge William Orrick said last week ‘I just don’t see that it (copyright) could go as broadly as beyond humans’ when hearing a motion by Slater to have the lawsuit dismissed. While the judge will issue a written order to have it dismissed, PETA may and most likely will continue to fight for the monkey’s supposed rights.
Slater has welcomed the decision but still fears the legal costs if PETA continue to pursue him.
‘I have always owned the copyright,’ Slater told Amateur Photographer. ‘It is Wikipedia and others who claim I don’t because a monkey pressed the shutter. Total rubbish. I chose the lens, the exposure settings, even put a flashgun on the camera and mounted it on a tripod with composition set, and light direction fixed
For now it appears the age-old question of ‘if a tree falls in a forest’ ‘if a monkey takes a selfie, does it own the copyright’ has been answered: no, it cannot. For now.