Is Appropriation Art ‘Fair Use'?

The artist Richard Prince, who is sometimes known as the #PrinceofAppropriation, claims that copyright law protects the artistic style he calls "appropriation art." Photographer Donald Graham filed suit against Prince, alleging Prince infringed the copyright in Graham's photograph, "Rastafarian Smoking a Joint," when Price used it for his own work. In his initial defense, Prince has embraced, rather than shunned, the "appropriation" label.

Prince is a one of the leading names in art. Several of his works have sold for amounts in excess of $2 million. The "wealthy and the famous," including Jay-Z, Robert DeNiro, and Brad Pitt attend his exhibitions and collect his works.

A prior case, Cariou v. Prince, led to a new fair use precedent. In that case several of Prince's works based on Cariou's original photos were found to qualify as fair use, including Prince's work, "Graduation," based on the Cariou photograph "Yes Rasta." Prince is now trying to move that precedent a step farther.

Like Cariou before him, Graham claims that Prince's appropriation art infringes his copyright. The case involves Graham's 1997 photograph, "Rastafarian Smoking a Joint, Jamaica." Prince's allegedly infringing work used Graham's copyrighted photograph, taken from a post by an Instagram user, rastajay92. Prince cropped the Graham photograph slightly, included the surrounding Instagram interface, and added his own "comment" at the bottom of the work (mimicking Instagram commentators).

After Graham became aware of Prince's use of his photograph, Graham posted his original photograph on his own Instagram account, along with the notation: "How to credit a work: 'Rastafarian Smoking a Joint' © 1997 Donald Graham."

Prince responded to Graham's copyright infringement suit with a motion to dismiss, arguing fair use. In his motion, Prince claims that it is fair for one artist to use the work of another. He references other artists, ranging from Andy Warhol to Pablo Pacasso, who could be considered appropriation artists. For example, his motion reproduces Warhol's work, "Gold Marilyn Monroe," which, according to Prince's motion, uses "an iconic photograph of Marilyn Monroe silkscreened onto a gold...