The respons that followed focusses on many interesting angles of the issue.
- The fact that Prince's Art was selling for 90.000 dollars at Frieze Art fair (and the subsequent respons from SuicideGirls to sell their Instagram photo's for 90).
- The fact that Prince used the images without permission which raises the question of copyright infringement : however there is the exception of FAIR USE. Prince has relied on the fair use exception before in the case Cariou v. Prince in which it was held that Prince's appropriation art could constitute fair use, and that a number of his works were transformative fair uses of Cariou's photographs. The case was settled.
Would in the case SuicideGirls vs Prince there be FAIR USE ?
First is there an infringement ? The images are likely to fall under copyright protection owned by the respective photographer/owner. As the copyright holder has the exclusive right to use, display and copy the images, without permission there may be an infringement. (note on Instagram ToU: when signing up and posting images on Instagram the user grants Instagram a license to use the images)
There are exceptions when permission is not needed : the Copyright Act of 1976, 17 U.S.C. § 107 states that
'The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment [ ......] is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:Appropriation art is accepted as valid purpose and the fact that it is being sold with a hefty price tag does not change this. It might even be used as an argument against a claim by the SuicideGirls seeing how the effect is positive given the publicity and raise of value of the images. Furthermore the act of the SuicideGirls may not have been the best response (I wonder if they consulted with a lawyer before selling their pictures).
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Where Jeff Koons and lost because his Puppies artwork was not considered to parody the underlying photograph he used, Prince won with respect to his Canal Zone series, however not all of the artworks in this series were considered fair use.
If the SuicideGirls would proceed legal actions can Prince claim that his work is transformative ?
I think they very well could be: Prince has not shown only the images but included the Instagram context which changes the images and transforms them in such a way they become a comment on social media and society which focuses on self expression and self exploitation through the posting of selfies etc. If this is indeed what was intended it is unlikely Prince will share his artistic process (He did not speak up about his intentions in the case against Cariou).
other interesting issues in this case include the following
- The SuicideGirls may be successful based on an infringement of their personality rights.
- The issue of SuicideGirls incriminating themselves. Anyone who puts stuff on Instagram should know (read) the terms of use. Which includes
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| Instagram terms of use |
- The price of NO-PRIVACY settings.
Reasonable expectations of privacy on social media
This again is also a good reminder why data-protection and privacy regulations are so important. If we look at the current dataprotection in Europe: any information that can be used to identify a person is considered personal information which can only be processed based on legitimate grounds. In this case however it depends if the re-use of Prince of these publicly available images fall under the scope of the data protection directive. (I will go into that later)
UPDATE
Image and Publicity rights
Another interesting question would be if the SuicidGirl in question would be able to challenge Prince based on His/Her 'personality' rights.This would be for example possible in the Netherlands where 'Portrait rights' are dealt with in the Dutch Copyright Act.
Article 21
If a portrait is made without having been commissioned by or on behalf of the persons portrayed, the copyright owner shall not be allowed to communicate it to the public, in so far as the person portrayed or, after his death, his relatives have a reasonable interest in opposing its communication to the public.
If a portrait is made without having been commissioned by or on behalf of the persons portrayed, the copyright owner shall not be allowed to communicate it to the public, in so far as the person portrayed or, after his death, his relatives have a reasonable interest in opposing its communication to the public.
Reasonable interests include when for example the person portrayed could
have asked compensation for the use of its portrait. Which is clearly proven given the SuicideGirl's fame and popularity (and the fact that the Girls are now selling their Instagram as counter reaction.).
The other valid reason is based on harm to their reputation. Prince's work can be read as a critical comment on the use of social media and objectification of women. Perhaps (I have not seen al of the works) some of the comments included in the frame are insulting, degrading etc and as such the work could be seen as damaging the image of the Suicicidegirls....whatever image that may be.
- Website : SuicideGirls is an adult lifestyle brand that redefines beauty with our unique pin up girls and active, smart online community
- Instagram : SuicideGirls 💋 What some people think makes us strange or weird or fucked up we think makes us beautiful. True devotees join our website/cult/private club.
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| the Art(Price) is merely a mirror |