TWiP 415 – Google Photos & the Paranoia of Free

Frederick – I just listened to your discussion on the Prince theft/Instagram story and as a patent attorney who deals with IP rights in software every day, I want to add my two cents. The story emphasizes that ALL copyright ownership of any work is limited by the possible fair use of the work. Fair use is defined in the copyright act as being a balancing of multiple factors related to the nature of the use of the copyrighted work (commercial or educational), the amount of the work used (a small portion as compared to the entire work), the nature of the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work. Every case is different and based upon its particular facts.

When I heard the story before it was on the podcast, I was shocked and went to look at the prior Prince case where he took photos of photos from a book on Rastafarians and used them in his own work. In that case, Richard Prince was found to have used the underlying photos under the definition of fair use. The decision based its decision on the “transformative” nature of the use of the underlying work. If you look at the actual two sets of images at issue here, the Prince versions of the photos were significantly different than the underlying images – they were not the entire image, and they were altered in a few ways. Based upon this distinction, the Second Circuit decided that fair use was appropriate. I would note that the keys for me are the use of less than all of the images, the different nature of the two sets of images, the different markets for the two sets of images that did not significantly overlap, and the significant amount of transformation which could be identified in the later work.

The Instagram image case, I believe, may come out differently. Here Prince used the entire image of the earlier work. This factor seems significant to me. Just as any author may use a quote or line from a song in his or her later work, using the entire song – lyric – recording – etc would not likely be fair use. Here the entire earlier image is used in an unaltered state with the addition of a small comment. While one might find so social commentary in the comments – especially if considering all of the images/comments in the show are taken in its entirety; I question whether he stayed on the permissible side of the fair use line. It was clearly commercial use of these other images. He made a huge amount on money (which I believe is the cause of most people’s objections) and none of it was shared with the original photographers.

The best part of this case is that it is likely some attorney will take the case on a contingent basis and drag Mr. Prince into court. As I said, I think he will be likely paying something in this case. He seems to welcome it as he probably loves the publicity. Copyright is there to reward photographers and thus encourage the creation of more work. It would seem more appropriate for him to share some of his profits for the use of others images. The equities all go against him. If a case is brought, I would guess that law students will forever ready and compare these two cases involving Richard Prince to explore the contours of fair use. For all of us photographers, we merely need to remember that we only own the exclusive right to our images for a limited time that will always be subjected to a possible fair use.

I don’t know if this commentary from one atty and TWIP listener helps. It is being offered for free so please take it for whatever it’s worth.