September 17, 2017

New York Post Quotes IP Attorney Bryan Wheelock on Artistic Fair Use

In an article published today by the New York Post, Harness Dickey Principal Bryan Wheelock offers legal insight into four ongoing lawsuits involving provocative New York artist Richard Prince.  Prince, who the article alleges gained fame in the late 1970s by closely reproducing cigarette ads, has come under scrutiny for “transforming” the works of photographers and social media personalities into Instagram-style portraits wrapped in new captions he added himself.

Wheelock, who previously wrote about Prince on the Harness Dickey blog, stated to the New York Post that he does not see how adding “an Instagram heading around somebody else’s photograph” qualifies as transformative use.”

The “transformative use” in question stems from the “fair use” defense stating that artistic appropriation is allowable if the new work contains a “new expression, meaning or message.”  If courts find the works to indeed be transformative then parties will largely lose the grounds to sue Prince on the basis of copyright infringement.  Disproving “fair use,” the article adds, can often be a challenging task.

The article also states — as Wheelock’s blog post does — that part of the controversy is the enormous amount of money that Prince earns from his works.  The Instagram portraits, for example, were part of his “New Portraits” art show that debuted in 2015 and earned as much as $90,000 per piece.

Read full article.