Is it legal to take someone else’s photograph, post it on Instagram, print out the Instagram post, and sell it as art? This is the question that appropriation art pioneer Richard Prince has been fighting in court for years. In 2014, Prince premiered New Portraits, an art series composed of blown-up, printed-out Instagram screenshots. One contained a shot of a Rastafarian lighting a joint, posted by a user called “Rastajay92.” Another featured a portrait of Sonic Youth bassist, guitarist, and vocalist Kim Gordon, uploaded on Prince’s own account. Neither photographer had gotten paid or credited, and both of them sued.
These aren’t Prince’s first lawsuits; he won a surprising 2013 victory against photographer Patrick Cariou, whose pictures he appropriated and painted over. But the New Portraits suits have produced some uniquely entertaining court filings, several of which were filed earlier this month. Where Prince’s earlier lawsuit involved traditionally artistic (if minimalist) paintings, his new defense rests largely on making normal Instagram use sound as impressive and difficult as possible. In fact, if you’ve ever felt guilty about wasting time on social media, using Instagram the Richard Prince way is the perfect antidote.
Using Instagram, the Richard Prince way
Prince filed reams of expert art evaluations and other supporting evidence, but his core arguments are condensed in a couple of statements — one filed in the suit by Rastafarian Lighting A Joint photographer Donald Graham, the other in its counterpart from Kim Gordon photographer Eric McNatt. Over these pages, he lays out a grand description of his highly artistic social media use. And while you may not be selling your Instagram posts for hundreds of thousands of dollars, you can still learn a lot from them.
Insta-stalking is an art
If you’re going to follow Richard Prince’s lead on Instagram, for instance, you’d better dispense with that plebeian rhetoric about mindless scrolling and stalking other people’s profiles. You are “envisioning the iPhone as both [your] paintbrush and [your] studio,” and as a great nature photographer might spend a life in the woods, you must spend “weeks and months — and hours on a single profile — on Instagram to get to ‘know’ the personas of users in this virtual world.”
Please don’t report insufficiently aesthetic comments as spam
Be clear about how much work this involves. You, intrepid Instagram artist, have “clicked on images in Instagram and combed through all of the comments on the thousands of posts [you] viewed to determine which comments had interesting language that [you] wanted to comment on” — i.e., take a screenshot of and repost. Sometimes, you’ll “simply find an image on Instagram and make [your] own commentary.”
You can’t just leave a comment
Really — where is your sense of composition? You have to arrange all the comments so that the most aesthetically pleasing ones appear right under the picture. “By swiping comments and reporting them as spam,” you can “manipulate which comments — including [yours] — would appear on the screensave, and in which order.” (Actually, maybe don’t report other people’s comments as spam — that’s kind of a jerk move.)
But how does one write a good comment? Well, let’s say you’re friends with the bassist from Sonic Youth, you’ve found a photo of her online and re-posted it to your feed, and you need to make that not seem weird and random. Do you:
A: Leave a comment labeling the picture with her name
B: Post a lyric featuring one of her song titles but “with a variation on the spelling,” as an inside joke between you, her, and “others who are familiar with and would recognize the lyric”
C: Post some “music-themed emoji,” emphasizing that you are friends with a very famous musician who uses musical instruments to play music
Trick question — the answer is “all of the above.”
Eventually, some sniping naysayer might say these comments seem pretty vapid. Feel free to agree with them, but make clear that you’re not actually using Instagram — you’re satirizing yourself using Instagram. A well-crafted post can “make people think about the ways we use social media to present ourselves,” or even “confront broader truths of this new world.” Don’t worry, nobody will ask which truths you’re talking about.
Crush your Insta-source’s self-esteem
If you’re an Instagram user who has no skill with a camera, you may end up re-posting a lot of other people’s content. If one of them complains, remember the key tactic for winning a fair use copyright defense: subtly but relentlessly trash-talking your opponent. Courts judge fair use partly based on how your derivative art affects the original work’s value. So you should try to demonstrate that you’re helping the artist and promoting their work, preferably by driving home their pathetic inferiority.
Are you not the most expensive living artist? Well, too bad
For instance, you could reference multiple media outlets describing you as “one of the most expensive living artists,” while emphasizing that the person suing you has appeared in a gallery show on “only two occasions,” and that they only sold one gallery photo — for a measly $500. Or you could get a supporter to “unequivocally” state that they would “never” have paid for the photograph without your intervention, crushing your Insta-source’s last fragments of self-esteem.
This may sound callous, when you’re talking about a wealthy artist pushing the boundaries of copyright to use a small-time photographer’s pictures for free. But the modern internet has “revolutionized the ways in which people communicate with each other,” and “the same content can be imbued with different meaning depending on how, where, when, and by whom it is communicated.” That means anything goes — even writing an entire blog post twisting legal statements into spurious social media advice.