Artist’s Instagram exhibit sparks copyright debate

An Instagram user

If someone took photos you posted on your social media feed, made posters of them and then sold them, would that person owe you any money?

That’s the question some Instagram users are asking in the wake of an artist who sold $90,000 prints at a recent art gallery exhibit in New York using pictures he never took.

Richard Prince, a 65-year-old painter and photographer, nabbed the pics directly from Instagram accounts — without the owner’s permission — enlarged them, slapped a comment on them, and sold them as part of his “New Portraits” series.

And it’s seemingly all perfectly legal.

You see, the artist has the legal latitude to take an original work and essentially make it his own by modifying it slightly and applying his individual artistic genius.

This is what is referred to as “fair dealing” under s. 29 of the Copyright Act and does not infringe on a person’s copyright if the use is for any of the following: 

  • research;
  • private study;
  • education;
  • parody or satire.

“The issue here is whether what this artist has done constitutes fair dealing or not,” says Toronto intellectual property lawyer Adam Bobker, adding artistic endeavour often falls under the research category.

Bobker says a court would have to balance the user’s copyright and their image against the artist’s right to use copyright works for the purposes of research as long as it’s fair.

“The more change that is made to the image that is used as part of the new work, obviously the more likely it is that someone would say that this use is fair and is part of a genuinely new and creative endeavour,” says Bobker.

A sticking point in the Instagram case may be the fact the artist did not seek permission first and sold the revised portraits.

“It exposes him to the potential for a claim,” notes Bobker, who is often employed by stock photo agencies to enforce licensing fees for anyone using their images without consent.

“If he had permission, then there would be no issue. I guess he figures that it’s unlikely someone who’s posted a picture on Instagram is going to go to the trouble of pursuing a claim.”

Prince has a history of controversy. He was sued by a French photographer in 2008 for re-photographing his shots, but won on appeal after a court ruled Prince’s use was transformative. A few years later he was again in the news for inserting his own name in place of author J.D. Salinger in copies of Catcher in the Rye.

Some of the subjects in his latest exhibit — online pinup models who call themselves Suicide Girls — have fought back by reproducing Prince’s reproductions of their Instagram photos and undercutting the “appropriation artist,” as some have dubbed him.

Proceeds from these photos — selling for a mere $90 — are being donated to a digital non-profit that defends online privacy and freedom of speech rights.

This whole tempest in a teacup begs the bigger question: who owns the photos you post online?

In a blog post, Instagram founder Kevin Systrom emphatically confirmed that the social media platform “does not claim any ownership rights over your photos.” He added: “. . . your photos are your photos. Period.”

Well, not entirely. Systrom’s statement conveniently doesn’t adress what others can do with your photos. Instagram’s privacy policy states that by using the service, users “hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide licence to use the content that you post.”

This means the site can still sell a licence to a third party such as an advertiser to use your content.

What Prince does with your photos under the guise of artistic merit is debatable, but likely more users would object to having their precious personal images used to shill products.

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