Richard Prince and the Future of Fair Use

Last week, appropriation artist Richard Prince and two photographers brought an end to over eight years of litigation with a pair of judgments that functionally concludes their battle. 

The dispute began in 2014 when Richard Prince opened an exhibition entitled New Portraits at a New York gallery owned by Gagosian Gallery. In the exhibition, Prince took photographs from Instagram and blew them up to poster size, adding “comments” by him underneath the images. 

The two photographers, Donald Graham and Eric McNatt, filed separate lawsuits in December 2015 and November 2016 respectively and targeted both Prince and Gagosian Gallery as well as others involved in the exhibition. 

The case had been ongoing since then with the judge denying Prince summary judgment in May 2023. Both cases were heading toward separate trials, but those have been averted with these recent filings.  

The short rulings are nearly identical in that they both order Prince and the Gallery to pay damages equal to five times the sale price of the works as well as covering all costs incurred by the plaintiff. They also bar Prince or the other defendants from further distribution or public display of the works at issue. 

The judgments sit in a strange place between an actual judgment and a settlement. The judgment was consented to by both sides of the lawsuit, making them functionally a settlement. But unlike a normal settlement, where details are rarely disclosed, these judgments provide a public record of what was agreed.  

As such, these judgments are particularly important in the conversation around fair use, even if they are not directly applicable. 

Understanding the Judgments 

To be clear, the judge in this case did not rule that Prince’s work was not a fair use. In fact, in a pre-trial conference earlier this month, the judge said, “It’s a mixed question of law and fact, and I most certainly did not conclusively decide anything on any of the elements of the fair use test.” 

Prince is also not acknowledging or admitting that his work was not a fair use, saying that he does not admit to willful infringement. 

To understand the importance of these judgments, we must look at two separate things: First is Prince’s own history in this space and the second is the recent Warhol ruling. 

In April 2013, Richard Prince won what was widely considered to be one of the most important fair use decisions of the 2010s. Photographer Patrick Cariou had sued Prince alleging that the Prince series entitled Canal Zone was an infringement of his 2000 photo book Yes Rasta.  

In the exhibit, Prince took photos from Cariou’s book and overlayed them with hand-drawn elements. Though the lower court sided with Cariou, the Second Circuit largely sided with Prince, ruling that most of the images in the exhibit were a fair use. Prince and Cariou would settle on the remainder of the images the next year.  

The case made Prince something of a pariah among photographers. This ruling was seen as one of the biggest expansions of fair use in recent history and had many artists and photographers worried that their work could be broadly used without a license or compensation. 

However, that changed again in May 2023. That was when the Supreme Court ruled in favor of photographer Lynn Goldsmith in her lawsuit against the estate of Andy Warhol. The estate had proactively sued her seeking a judgment of non-infringement in Warhol’s use of a photograph taken by Goldsmith, this one of the musician Prince, to create a series of paintings. 

Goldsmith won the case, with the Supreme Court narrowing the role that “transformativeness” plays in making a fair use decision. This notion of transformativeness was paramount in the 2013 Richard Prince case, where the court found that the transformativeness of the appropriation art was the most crucial element in its decision to side with Prince.

It is questionable if, given a similar set of facts, whether the court would reach the same decision today. 

That is the reality that both Richard Prince and Gagosian Gallery find themselves in today. With Warhol narrowing the fair use exemption, making such an argument is much riskier than it was just a decade ago. 

Why the Judgments Matter 

While the judgments do not mean anything from a precedent standpoint, there is one clear message that they do send: That neither Prince nor Gagosian Gallery were confident in their chances of victory. 

As we saw ten years ago, Prince and Gagosian Gallery have no qualms about going to the mat on matters of fair use. Prince’s art is about pushing the boundaries of fair use and, in many ways, litigation over that art is an expected and perhaps even desired part of what he does. 

Here, Prince backed down. Not only did he settle the case, but agreed to a public consent judgment that has him paying five times the sale price and for all costs the plaintiffs incurred.  

While it is true that Prince is not admitting willful infringement, it is also an incredibly lopsided settlement that indicates an extreme lack of confidence in their chances of success at trial. 

That lack of confidence is, most likely, very deserved. The arguments that Prince won with in 2013 have been severely restricted by the Supreme Court. There was no reason to assume that this case would be a repeat, especially given that copying in this case was much more direct than in the Cariou one. 

Both the facts of this case and the shifting sands of fair use favored the plaintiffs far more than they did in 2013. Prince and Gagosian Gallery simply saw the writing on the wall and sought a way to end the case without going to trial, even if it meant an extremely one-sided settlement. 

Bottom Line 

From a precedent standpoint, these judgments are not useful. There’s simply not much to be gleaned about fair use from the judge’s words and, even if there were, since it is a consent judgment, it would not have much bearing on future cases. 

What is important is that these judgments exist at all.  

There is no greater illustration of just how much has changed over the past few years than seeing Richard Prince, the artist who battled and largely defeated a photographer whose work he used, agree to very unfavorable terms in a similar case a decade later. 

Though the facts of the case are different, the biggest shift has been in fair use itself, with the Warhol ruling making his core arguments much more difficult to sustain. 

From that perspective, these judgments are major turning points in fair use, representing an acknowledgement that the landscape of fair use has changed and that arguments that carried the day just a decade ago are no longer safe bets.  

Header Photo: From Richard Prince’s Website