"Rastafarian Smoking a Joint" ©Donald Graham

“Rastafarian Smoking a Joint” ©Donald Graham

Photographer Donald Graham has sued appropriation artist Richard Prince and his gallerist Lawrence Gagosian for copyright infringement of a photo that appeared without Graham’s authorization on Instagram, and then in a gallery exhibition of Prince’s appropriation work.

Prince drew public complaints and vitriol last year for unauthorized reproduction, display and sale of a series of 67 x 55-inch inkjet prints of Instagram “screen saves” of images by other artists and photographers. But Graham is the first to sue.

The Los Angeles-based photographer filed suit in federal court in New York on December 30, alleging unauthorized use of a 1996 photograph (shown here) of a Rastafarian man lighting a joint. Graham alleges in his claim that a third party posted his photograph on Instagram without permission, and that Prince copied and enlarged that unauthorized photo and displayed it as part of his 2014 “New Portraits” exhibition.

Graham’s complaint calls Prince out for “his blatant disregard for copyright law” and goes on to say that “Mr. Prince consistently and repeatedly has incorporated others’ works” into his own works, without permission, credit or compensation.

Several years ago, Prince fended off most of a high-profile copyright infringement claim from Patrick Cariou, who accused Prince of misappropriating images from a book called Yes, Rasta–another collection of Rastafarian photographs. Prince used the Cariou images as raw material for a series called Canal Zone. He and Gagosian earned more than $10 million on the sale of works from that series.

In 2013, the US Court of Appeals for the Second Circuit in New York ruled that most of the disputed works in the Canal Zone series qualified as fair use of Cariou’s photographs because Prince transformed them with “an entirely different esthetic.” Prince was forced to settle with Cariou over several of the unauthorized works, however.

Whether Prince’s use of Graham’s photograph qualifies as fair use under copyright law will almost certainly be a pivotal question in the Graham v. Prince claim.

According to Graham’s lawsuit, he shot the “Rastafarian Smoking a Joint” photograph as part of a personal project for which he “spent approximately two weeks trekking through the villages and mountains of Jamaica…in order to capture photographers of the Rastafarian people in their surrounding environment.”

Graham has sold limited edition prints of the photograph since 2004 through his own gallery, A. Galerie, which is located in Paris, according to the complaint.

The photograph has also appeared on Graham’s website, with his copyright notice.

Prince included Graham’s image among a series of 37 large inkjet prints that made up his “New Portraits” exhibition. The prints were created from various “screen saves,” or copies, that Prince made of Instagram photos posted by other people.

According to Graham’s claim, Prince’s alterations included minor cropping at the top and bottom of Graham’s photograph, and the inclusion of text showing Instagram account information, likes, and comments.

Among the comments is one by Prince that says, “Canal Zinian da lam jam.” (Prince has referred to such comments he’s added to Instagram posts before appropriating them for his “New Portraits” series as “gobbledygook,” “oxymorons,” and “psychic jiu jitsu.”)

Anticipating Prince’s fair use defense, Graham alleges in his claim: “Mr. Prince’s sole modification to the Instagram post prior to his screen save was the addition of [that] text.”

Gagosian and Prince sold the inkjet print made from the copy of Graham’s photograph before the conclusion of the exhibition, according to the lawsuit. The sale price was not specified in the lawsuit, but other prints from the series reportedly sold for $90,000.

Graham is seeking statutory damages for infringement. However, he may be entitled to actual damages only, including any profits from the sale of his image, but not statutory damages–because he didn’t register copyright in a timely manner, as required by copyright law.

For copyright holders to collect statutory damages for infringement, the law requires registration of the disputed work within three months of first publication, or prior to an alleged infringement.

Graham registered his copyright in October 2014, after Prince allegedly commenced the unauthorized use. He first published the image in 1998.

Prince has not yet filed a written response to Graham’s claim.

Related:
“SuicideGirls” Deliver Cleverest Response to Richard Prince Instagram Appropriation

Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says

Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

How (And Why) to Make Copyright Registration Part of Your Workflow


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