Guest Post: The Most Interesting “Appropriation” Cases to Watch in 2016

Graham’s complaint argues that Prince went further in the “New Portraits” exhibit than he did with Patrick Cariou’s images in that there were basically no alterations of his original photograph.

Well I hope the Second Circuit gets to this one before the Supreme Court gets to Authors Guild v. Google so we can see this play out. I’m especially curious as to how the Second Circuit would rule as to the size and comments of Prince’s secondary work. As the Second Circuit noted in Cariou, it was notable to them that “Prince’s works were also the several times the size of Cariou’s classic photographs,” indicating that even a difference in size might be fair use. Prince’s comments arguably alter the message, meaning and expression (I know many of you are screaming in disagreement with me), and the Second Circuit seems to love Prince, so he’s got that going for him.

But the most fascinating piece of this I’ve discovered is how Prince’s foray into social media has transformed his largely anonymous nature-now giving us his trails of detailed thoughts on his intent behind “New Portraits” in his online blog.

Even in Cariou we could see Prince giving evasive testimony regarding his intent and he’s had a history of evading any perceived identity prior to “New Portraits.” The Second Circuit agreed with him on the intent matter and said intent doesn’t matter (very much), taking a very post-modernist approach to looking at the 4-corners of the work and asking whether the work would be “reasonably perceived” by a “reasonable observer” to alter the original with “new expression, meaning or message. I’m wondering whether any of Prince’s stated intent will matter with regard to his “New Portraits.”

In Prince’s blog, he’s been publishing long trains of thought on the process and subject of his Instagram images, and also his other appropriations, such as the Marlboro Man ads and Salinger’s “Catcher in the Rye.” Prince writes a lot about his comments on other people’s social media posts.  He calls it “Birdtalk.”

“I use to Bird in the early nineties for Purple Magazine and birded in my first catalogue for Barbara Gladstone in ’87.” “Short sentences that were funny, sweet, dumb, profound, absurd, stupid, jokey, Finnegan’s Wake meets Mad Magazine meets ad copy for Calvin Kline. Think Dylan’s Tarantula. Then think some more and think Kathy Acker’s Tarantula. Sometimes I write down the first sentence that starts off my favorite novel.” “Some of the language came directly from TV. If I’m selecting a photo of someone and adding a comment to their gram and an advertisement comes on… I use the language that I hear in the ad. Inferior language. It works. It sounds like it means something.”

“There are things you can do to a photograph now that you couldn’t do in ’83.” “ How was it called back then? Sampling? “

“On the gram. I was just asked why do I like Instagram. I said, “Because there’s rules. And if you break the rules, you get kicked off.”

“I quickly recognized the device was a way to get the lead out. If Twitter was editorial… then Instagram was advertising. …When you screen save an Instagram image you can get maybe three, four comments in the save if you include the persons “profile” icon that appears on the upper left of the page. I decided early on I wanted the persons icon to be part of the save. But what else could I save?” “Whatever I did, I wanted it to happen INSIDE and before the save. I wanted my contribution to be part of the “gram.” I didn’t want to do anything physical to the photograph after it was printed.”

“Everyone is fair. Game. An even playing field. They had no history, no past, no name. A life of their own. They’ll learn. They’ll find their own way. I have no responsibility. They do.”

“Trolling.’ If you say so. I never thought about it that way. The word has been used to describe part of the process of making my new portraits. I guess so. It’s not like I’m on the back of a boat throwing out chum.’We’re going to need a bigger boat.’”

“For now, all I can say is… they’re the only thing I’ve ever done that has made me happy.”

I know I’m obsessed with Prince and for that I’m very sorry. But no one else is challenging the system the way he is and there’s art in that…maybe.

6. Jeff Koons Wants To Play (Pay?), Too

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