Ripping off artists in the name of ART is not OK
How long are we going to continue to let small artists get screwed by those with deep pockets? Talk to any small creator–filmmakers, musicians, photographers, artists, authors–and ask whether they’ve had their work stolen (and monetized) by others and most will likely say “yes.” Then ask them what they did about it. The answer will likely be, “nothing.”
Right now a con-artist named Richard Prince is busy raking in the dough by selling Instagram photographs taken by others. Oh yeah, he adds some drivel and emojis to the bottom of each photo before he blows it up a 65 x 48 print. Yes art is often derivative, and yes these photographs are altered–but, in essence, at its core, the art remains a photograph taken (and owned) by someone else.
Prince, and the Gagosian Gallery where his work was shown, apparently have no qualms about blatantly appropriating and cashing by selling the work of other artists without their permission. As a Paddy Johnson noted so succinctly in a piece he wrote for Artnet News, “Richard Prince sucks.”
So, while there’s no doubt Prince is a phony, piggy-backing off the work of Instagram artists; the question is–returning to my original query–Can the photographers whose pictures were stolen do anything to stop Prince’s outrageous fraud? Well, not really. You see, quite simply, Mr. Prince is loaded and the people he steals from are not.
Prince’s scam, disguised as art, is nothing new. Over his career he’s developed a reputation as a serial thief and has ended up in court before. Two years ago he prevailed (partially) on appeal in a suit brought by photographer Patrick Cariou who claimed copyright infringement when Prince produced a series of photographs based on Cariou’s work. Ultimately a settlement was reached.
For his part Prince purports not to care much about copyright, telling Russhumazine.com:
…sometimes it’s better not to be successful and well known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention.
Why should he care? With millions in the bank Prince can afford not to. Does his past legal success mean he’d win this round? Unfortunately, it’s unlikely we’ll ever find out since filing a lawsuit costs mega money–money that most everyday creators don’t have.
Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it’s just a screenshot (not a painting). No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It’s already sold ($90K I’ve been told) during the VIP preview. No, I’m not gonna go after him. And nope, I have no idea who ended up with it! ? #lifeisstrange #modernart #wannabuyaninstagrampicture
Once again we’re left with a scenario where a rich charlatan can get away with stealing from the little guy.
It’s a scenario that’s played out many times. We’ve witnessed similar rip-offs by corporate interests that routinely steal the work of artists. Sam Levin wrote an expose for the East Bay Express last year documenting the ways in which artists are routinely victimized by such theft:
Visual artists and designers throughout the Bay Area and across the country are, at alarming rates, facing copyright infringements from large retail and wholesale companies stealing their intellectual property for their own products and profit. As artists increasingly promote their work and crafts online — through Etsy or their own websites and Facebook pages — corporations are stealing their designs and mass-producing them for sale.
Here too, an artist whose work is stolen has little recourse when it comes to fighting back. Even if they do, Levin points out that any settlement is likely to be paltry and include a non-disclosure agreement, thereby shielding the thief from any negative public shaming.
The time has come for Congress to establish a small claims court for copyright
Perhaps the time has come to get serious about establishing a copyright small claims court. It’s an idea the U.S. Copyright Office spent several years studying. A report summarizing its findings was sent to Congress in September of 2013. It outlined potential bureaucratic hurdles and ultimately recommended “the creation of a voluntary system of adjudication to be administered by the Copyright Office.” In any case, the report’s findings reinforce the need for some type of action on this issue. From the introduction:
While infringement is nothing new when it comes to the world of creative works, there is no question that it has proliferated with the ascendance of digital culture and the unprecedented desire for content. Today it is not only easy to make unauthorized copies, but to do so at virtually no cost, much to the detriment of authors and the market for their works. …Unfortunately, and perhaps ironically, as the rate of infringement has increased, so too have the barriers to pursuing copyright claims in the federal courts. These barriers are largely practical: federal litigation is expensive and time-consuming, and therefore out of reach for many copyright owners…If exclusive rights are unenforceable, they are weakened as the pillars of the copyright law, and public respect for our nation’s creativity is eroded in turn.
Other documentation gathered for the report included this startling nugget:.
In fact, one recent survey found that, as of 2011, the median cost for litigating a copyright infringement lawsuit with less than $1 million at risk was $350,000.
More analysis of the report can be found by Jonathan Bailey’s post on Plagiarism Today.
Yet here we are. More than a year and a half has passed since the Copyright Office published its recommendations, Congress has yet to act. I realize the wheels of progress move at a glacial pass in Washington, and there are other copyright-related issues being bandied about, but let’s hope this idea will move to the front burner soon.
Bottom line, establishing a small claims court where copyright claims could be heard would at least level the playing field a bit. Small creators would not have to sit idly as skunks like Richard Prince co-opt their work and make money at their expense. Obviously damages are limited in small claims court, but at least those whose work is stolen could seek redress and perhaps, collectively, turn the tide against this type of chronic theft.
Prince can afford to go to court. The Instagram users he stole from cannot. There has got to be a better way don’t you think?
Update 5/29/15: I think this article by posted at fstoppers.com is a good overview of the copyright issues involved: The Latest Richard Prince Controversy, Clarified by Patent and Copyright Attorney John Arsenault