A reminder that your instagram photos are actually, totally and really yours (if you’re the one who clicked the shutter/button); only a licensee/assignee can legally sell them for $90,000
In other words:
(a) The Washington Post article yesterday was very wrong (and when writing about legal issues, even for the Style section, they should really ask at least one lawyer who specializes in the topic); and
(b) There are attorneys, organizations and clinics that may be able to help you sue if someone makes a copy of your art, adds no transformative content/elements to it, and sells it for $90,000.
The 4th paragraph of the Washington Post article says this:
This month, painter and photographer Richard Prince reminded us that what you post is public, and given the flexibility of copyright laws, can be shared — and sold — for anyone to see.
They’re half-wrong. Yes, what you post publicly is public - but that does not mean that it is in the “public domain”, and it definitely does not mean that “flexible” copyright laws allow for it to be legally sold.
Yes, it’s probably true that, given the flexibility of copyright laws, what you post publicly can be shared for anyone to see; most social media sites, including Instagram and tumblr, state in the Terms of Use that when you make a public post, you license the content in it to anyone on the site.
But that’s not what Prince did. With most of the prints in “his” show earlier this year, he printed out photos that he found on Instagram - with a single comment added - and sold them for nearly six figures each. He said they’re transformative works, it’s fair use.
But he’s not looking at his own case carefully enough when making that claim.
A Fair Use analysis, as the Second Circuit said in the 2013 Prince case, must look to the extent to which the new work contains new expression as embodied in such elements as composition, scale, color, media and general aesthetic. While the general aesthetic may have changed between instagram and gallery print, the rest of the elements do not seem to have changed, at least in the mid-resolution versions of the images that most of us have seen online. A change in the size of a print - combined with the commercial aspects of the sale of the art - are likely not enough to meet the transformativeness test.
The Cairou photos at issue in the 2013 Prince case were painted over, and significant changes were made in some of the images’ aesthetics; that didn’t happen here. Absent that, Fair Use only exists in the presence of commentary or criticism of the original content; it’s unclear whether the captions Prince engage in such actions. It’s not brilliant, it’s not ballsy, and it’s not way beyond its time; to call these all these prints inherently transformative diminishes the artistry of every follow-on creator.
The thing is, the only people who can ask the courts for redress over copyright infringement are the copyrightholders of the original photos, and at least tow of them have said they don’t want to do so. That doesn’t make Prince’s work noninfringing, and actually, the photogs can change their minds in the next few months and opt to sue even if they haven’t thus far.
Back in October, when the Instagram prints were first shown in a gallery, Prince was hit with a cease & desist letter from Donald Graham, a photog whose pictures he used - someone else had posted Graham’s photo to Instagram, in that circumstance. We haven’t been able to ascertain whether the photo taken by Graham was in the recent exhibit, or whether Prince has settled the dispute with Graham, although we’re trying to find out.
RT about this post on Twitter.
Can others legally sell your Instagram photos without your permission? Read on to learn more about Richard Prince selling others’ Instagram snaps for $90k!
