So at one end of the spectrum literally taking someone's photo and selling them without permission is NOT copyright infringement, and at the other end taking your own photo then altering it a certain way IS copyright infringement. Someone will have to explain that one to me...
Different legal systems have different approaches to the boundary between infringement and permissible usage of copyright works.
UK law - copyright infringement is generally based on the concept of substantial reproduction of the original. On the basis of the similarity between the two, there was substantial reproduction. The main issue in the Red Bus case was over proof of copying of the specific work (on the basis that the work in question had been created by numerous photographers over the years (so how can you prove the specific work of the claimant was copied?)).
US law - more flexible in the sense of avoiding infringement where the use of the work in a new light is sufficiently transformative. The linked article from the OP shows a good example in the combination of four separate shots to create a new work.
The question would be whether the Instagram reproductions are sufficiently transformative. Perhaps the reproduction of one photo on its own is not sufficiently transformative.
Another point of interest is that the person depicted in the photo may not be the owner of the copyright with a suitable cause of action (unless you're talking about selfies of course). I'm sure it would make for an interesting case!
I had the same thought. This story is about a transaction between charlatans and fools. It's a business that has a long and storied history.
Anyone could hunt down an Instagram post that spoke to them and have a very high quality large print reproduction of it for a couple orders of magnitude less than $90k. Stuff like this is at the root of my whole beef with modern art. It's much more about being clever than talent or dedication or anything else. I could spend a lifetime trying to imitate Rembrandt and never get there. I could knock this Richard Prince stunt out before lunch if I started now (it's currently 10:13 AM CST here in Kansas City).
I don't think it's quite accurate to call the participants charlatans / fools. The pieces are presented as clearly ripped off of Instagram, the last bit of the comment thread preserved along with one of the artist's. The people buying the prints know exactly what they are, it's difficult to maintain the position that they're getting ripped off.
Art's a weird world. White canvases have sold for many millions:
What you're actually buying when you purchase a piece of art is bound to be subjective, as the enjoyment of visual art is much more individual than, say, a video game. There are games that blur the lines of what makes up a game, and people still buy them, play them, and enjoy them.
Also, there's plenty of ways to enjoy a game without ever playing it. When I was a kid, I would buy strategy guides for games I never played or owned. I'll watch people playing games that I would never play myself. If someone like John Romero or Sid Meier made something like a Pac-Man clone, I might buy it.
So it's easy for me to see why someone would buy these Instagram shots. There's something about the curation and attention being given to them by the artist that makes it a more interesting experience to look at than if you just took a screenshot and saved it in a folder or printed it out. The artist isn't just producing visuals, he's also applying a more cultivated taste to 'what' he's producing. He's only got so much time to make things, what he chooses to make tells as much of a story as the skills he used to make it.
There's a tax shell-game aspect to modern art, as well. If you sell a piece of art and re-invest the proceeds into a substantially similar work of art (painting for a painting, sculpture for a sculpture, etc) you can avoid paying capital gains taxes.
Presumably based on the Prince decision you can take a duplicate of one of "his" works [which are really just minor amendments and not new works at all ...], get a friend to write a comment to go with it and appropriate the newly commented work without infringement? That extends the principle fairly.
Regardless, this all makes Prince in high demand - basically any work now can be validated by his comment and then can be reproduced without paying the original creator for a license.
Well...yes...this headline manages to be both true but a little off-point. By posting your photos on Instagram, you have definitely given a third-party (Instagram) the right to make copies and distribute your photos...yet, the photo still belongs to you, Instagram is quick to point out [1].
But the reselling of photos as described here is not particular to Instagram. It involves an artist who reappropriates them for artistic purposes (similar to parody)...he could've done this with any photo or off of any service...so this concept isn't even particular to the Internet and the digital age.
However, such examples as the OP are always good for discussion about "what is art?"...it's not so much the actual work (measured in sweat and hours) put into it, but the skill in repurposing it, and in the reputation of the artist...you have to build up quite the career of actually interesting work before you can get to the point where a rich tycoon will pay you $250K to splatter mud patterns on one of his walls. It'd be interesting to see a lawsuit come out of this...I'm guessing the artist could make a good case that the original photographers would never be able to raise $90K for their images...people only pay for it because it is work that he noticed/curated/altered.
To me, it's almost the same (but not quite exactly) as someone posting code on stack overflow, and developers using and relying on that code for their job.
The idea of what part of information is owned and what is shared is a concept that fascinates and bewilders me consistently. Art has all these emotional attachments to it, this personal affect, and not many stop to think that for some people, code - even mathematics, is exactly the same.
Why is there a difference between someone who posts a solution on the internet, versus someone who teaches a course and publishes a book, versus someone who traces a drawing using a projector for art? Public and cultural education, myth, and superstition, mostly. But in quantity and quality - these determine the success or failure of any venture business; even the start of a lifelong friendship.
How do people come to the thoughts they conclude with? How do people get ideas? I guarantee you, if you lock yourself up in a little room and wall yourself off from society, you will either arrive at some derivative of absolute truth or you will go insane, possibly both.
If I post this comment, and then other people have ideas that are profitable as a result of my comment, does it matter how similar their idea to my comment appears? Do I own those ideas that result from my comment? I would say no, because that's absurd, but yet, we live in a world that has opinions that cover the entire spectrum of this dialogue, and then some.
Nah, there's a pretty big difference (mentally) between SO and Instagram.
You put your code on SO with the intention of giving it to someone else, potentially many others. That's the entire point in SO and it's pretty clear from the start that that's what you're doing there.
You put your photos on Instagram so you can show them to your friends. Instagram is a storage space for your photos. When someone looks at your photo, the intention is that you're showing them the photo, rather than giving them the photo. (Un)Fortunately, when computers are concerned, showing and giving are the same thing.
The fact that people think of showing and giving as different, but their smart devices treat them the same, results in a lot of friction. The entire DRM industry and respective legislation is concerned with aligning computer behaviour with (some) human expectations.
So yes, I agree that Instagram works the same as Stack Overflow, but that's not what people's instinctive expectation is.
Based on stack overflow's terms of use and instagram's they are not the same. Stack overflow's terms say you give stack overflow and others the right to copy and use the content. Instagram's terms say you only give permission to Instagram. And well this makes sense as the purpose of these sites differ. If you want to share photos that people can use elsewhere go to a site like flicker were you can easily attach a Creative Commons license.
> It involves an artist who reappropriates them for artistic purposes (similar to parody)...he could've done this with any photo or off of any service...so this concept isn't even particular to the Internet and the digital age.
So why is this legal in the case of photographs, yet sampling (in music) remains illegal?
The legal crux seems to rely on if a significant amount of the original work has changed or been put into different context that sets it apart from the original work.
Examples being Vanilla Ice vs Bowie & Queen, and Girltalk/Illegal Art [1]
On one hand, it's funny that user "doedeere" thinks she had to give permission to the artist in order to use her picture in art. Gives off an air of entitlement if you ask me. On the other, I think it's a fair example of how little the average user is aware (read: doesn't give any attention to at all) of a free service's TOS and what is/isn't allowed, in addition the actual nature of posting stuff on the Internet. Need to educate yourselves, people (obviously not anyone browsing HN, but you know what I mean).
The fact that these pieces are selling for that much? Well, I'd say the suckers are the ones buying them. Maybe in 60 or so years they'll be considered something? Maybe not? Art's in the eye of the beholder, as it should be. If people want to wast...I mean spend that much on an enlarged screenshot, let them.
This doesn't have anything to do with Instagram's TOS though. The artist is banking on his screenshots being considered "transformative". However, what this means is kind of grey. Does adding a comment under a picture add new value [1] to that picture? There have been cases brought where the art in question had much more transformation applied to it (examples: Harry Potter encyclopedia, Obama Hope Image).
This has nothing to do with Instagram's TOS. This is an argument about whether or not this falls under the US's Fair Use doctrine to determine whether or not the instagram user can assert copyright over the images being used by Prince.
I find it fascinating that trivial modifications of photos qualify as 'transformative' and thus evade copyright. So it's okay for me to download the new Taylor Swift single, add some extra reverb, and start selling copies of it? Cool.
I think it does come down to money too--like everything? I think if Richard Prince downloaded an image of Mickey Mouse, and did his "artistic" magic to the image, and sold prints in a gallery; his Lawyer would be very busy?
I, personally, don't give websites very many pictures. The few pictures I post are images I am giving away. Companies, Artists, and webscrapers are free to do whatever they want with the pictures I give up.
I don't give companies like Instagram any images--period. Facebook gets a picture of the back of my head, and I still use a pseudonym.
Even in high school, and college I never sat for a school picture. I don't like people taking my picture without my permission. I don't like companies whom take, and keep my picture--even for security, and identify purposes. I don't like public cams. I don't like marketing trend of taking employees picture for marketing purposes(Whole Foods, etc), or even employee of the month pictures.
What I am trying to say is I wish people were more concerned about their Images? I'll admit my my concern over the protection of my image, and the images I take borders on an obsession. I sometimes wonder if I'm missing out on opportunities in life by being so private?
I know companies will start running campaigns, and marketing ploys if Not posting becomes a trend. I can see it now, "Don't miss out on life--post more images!" "Don't miss out on networking opportunities--post more images!" "Don't miss out on love--post more images!"
People here know once image is posted it can be copied, manipulated, used without your consent, and sent around the world. The people I am close to don't quite realize once they upload in image it's essentially not their's anymore in any practical sense.
baffling and understandably shocks ppl....but all that aside, wondering what kind of quality could the prints be really ? Res of instagram photos isn't that high right? even thru the API?
The buyers aren't spending 90k for a print of an Instagram, they're spending 90k for Richard Prince's signature on the bottom. Richard Prince could appropriate anything at this point, make a very limited edition, sign it, and mint money.
There's an important extension that isn't clearly visible, which is the commodity aspect. When there's an established market for an artist, the financial success (see headline) is a necessary signal that the artist's market is healthy.
Everything else is more or less secondary, both to the market and to the artist as product and manufacturer. In other words, a lost/settled/won lawsuit is not a liability for him.
Unlike you, he has won a lawsuit to that effect. Also, he has sold similar appropriations for far more money, so there's a framing effect as to what they're worth.
But also, in that case, the copyrighted work was registered, allowing statutory damages. It's unlikely that these instagrams are registered, which reduces the potential award. In addition, there's likely no actual damages in terms of lost sales.
I think that he's got a pretty good chance that he'd win based on the history, and lower damages in the case of a loss. (Not registered, not otherwise commercial work, no potential loss of sales for original)
The headline is a bit like saying "Painters sells dried paint for 90k" or "Programmer sells series of characters for 90k" Technically it's accurate, but it misses the point entirely.
Richard Prince, whether you like him or not, is an artist and his medium is typically found/appropriated objects. We, as a society, have rewarded him in the past because there is something interesting in what he does. Oftentimes artists are misunderstood within their lifetimes and the scope of their interests become more apparent with time. So for now, these are super gimmicky and somewhat frustrating, but as the world changes in unexpected ways they will only take on more meaning .
46 comments
[ 3.7 ms ] story [ 110 ms ] threadhttp://aandalawblog.blogspot.com/2012/01/red-bus-suggests-co...
So at one end of the spectrum literally taking someone's photo and selling them without permission is NOT copyright infringement, and at the other end taking your own photo then altering it a certain way IS copyright infringement. Someone will have to explain that one to me...
[0] https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_...
UK law - copyright infringement is generally based on the concept of substantial reproduction of the original. On the basis of the similarity between the two, there was substantial reproduction. The main issue in the Red Bus case was over proof of copying of the specific work (on the basis that the work in question had been created by numerous photographers over the years (so how can you prove the specific work of the claimant was copied?)).
US law - more flexible in the sense of avoiding infringement where the use of the work in a new light is sufficiently transformative. The linked article from the OP shows a good example in the combination of four separate shots to create a new work.
The question would be whether the Instagram reproductions are sufficiently transformative. Perhaps the reproduction of one photo on its own is not sufficiently transformative.
Another point of interest is that the person depicted in the photo may not be the owner of the copyright with a suitable cause of action (unless you're talking about selfies of course). I'm sure it would make for an interesting case!
What bothers me is that someone else would buy them, when they're available for free on the internet.
Anyone could hunt down an Instagram post that spoke to them and have a very high quality large print reproduction of it for a couple orders of magnitude less than $90k. Stuff like this is at the root of my whole beef with modern art. It's much more about being clever than talent or dedication or anything else. I could spend a lifetime trying to imitate Rembrandt and never get there. I could knock this Richard Prince stunt out before lunch if I started now (it's currently 10:13 AM CST here in Kansas City).
Art's a weird world. White canvases have sold for many millions:
http://www.bloombergview.com/articles/2014-11-14/why-pay-15-...
What you're actually buying when you purchase a piece of art is bound to be subjective, as the enjoyment of visual art is much more individual than, say, a video game. There are games that blur the lines of what makes up a game, and people still buy them, play them, and enjoy them.
Also, there's plenty of ways to enjoy a game without ever playing it. When I was a kid, I would buy strategy guides for games I never played or owned. I'll watch people playing games that I would never play myself. If someone like John Romero or Sid Meier made something like a Pac-Man clone, I might buy it.
So it's easy for me to see why someone would buy these Instagram shots. There's something about the curation and attention being given to them by the artist that makes it a more interesting experience to look at than if you just took a screenshot and saved it in a folder or printed it out. The artist isn't just producing visuals, he's also applying a more cultivated taste to 'what' he's producing. He's only got so much time to make things, what he chooses to make tells as much of a story as the skills he used to make it.
Source: http://www.nytimes.com/2015/04/27/arts/design/tax-break-used...
Thats not how art world works :).
Regardless, this all makes Prince in high demand - basically any work now can be validated by his comment and then can be reproduced without paying the original creator for a license.
But the reselling of photos as described here is not particular to Instagram. It involves an artist who reappropriates them for artistic purposes (similar to parody)...he could've done this with any photo or off of any service...so this concept isn't even particular to the Internet and the digital age.
However, such examples as the OP are always good for discussion about "what is art?"...it's not so much the actual work (measured in sweat and hours) put into it, but the skill in repurposing it, and in the reputation of the artist...you have to build up quite the career of actually interesting work before you can get to the point where a rich tycoon will pay you $250K to splatter mud patterns on one of his walls. It'd be interesting to see a lawsuit come out of this...I'm guessing the artist could make a good case that the original photographers would never be able to raise $90K for their images...people only pay for it because it is work that he noticed/curated/altered.
[1] http://blog.instagram.com/post/38252135408/thank-you-and-wer...
The idea of what part of information is owned and what is shared is a concept that fascinates and bewilders me consistently. Art has all these emotional attachments to it, this personal affect, and not many stop to think that for some people, code - even mathematics, is exactly the same.
Why is there a difference between someone who posts a solution on the internet, versus someone who teaches a course and publishes a book, versus someone who traces a drawing using a projector for art? Public and cultural education, myth, and superstition, mostly. But in quantity and quality - these determine the success or failure of any venture business; even the start of a lifelong friendship.
How do people come to the thoughts they conclude with? How do people get ideas? I guarantee you, if you lock yourself up in a little room and wall yourself off from society, you will either arrive at some derivative of absolute truth or you will go insane, possibly both.
If I post this comment, and then other people have ideas that are profitable as a result of my comment, does it matter how similar their idea to my comment appears? Do I own those ideas that result from my comment? I would say no, because that's absurd, but yet, we live in a world that has opinions that cover the entire spectrum of this dialogue, and then some.
You put your code on SO with the intention of giving it to someone else, potentially many others. That's the entire point in SO and it's pretty clear from the start that that's what you're doing there.
You put your photos on Instagram so you can show them to your friends. Instagram is a storage space for your photos. When someone looks at your photo, the intention is that you're showing them the photo, rather than giving them the photo. (Un)Fortunately, when computers are concerned, showing and giving are the same thing.
The fact that people think of showing and giving as different, but their smart devices treat them the same, results in a lot of friction. The entire DRM industry and respective legislation is concerned with aligning computer behaviour with (some) human expectations.
So yes, I agree that Instagram works the same as Stack Overflow, but that's not what people's instinctive expectation is.
So why is this legal in the case of photographs, yet sampling (in music) remains illegal?
Examples being Vanilla Ice vs Bowie & Queen, and Girltalk/Illegal Art [1]
[1] http://illegal-art.net/girltalk
On one hand, it's funny that user "doedeere" thinks she had to give permission to the artist in order to use her picture in art. Gives off an air of entitlement if you ask me. On the other, I think it's a fair example of how little the average user is aware (read: doesn't give any attention to at all) of a free service's TOS and what is/isn't allowed, in addition the actual nature of posting stuff on the Internet. Need to educate yourselves, people (obviously not anyone browsing HN, but you know what I mean).
The fact that these pieces are selling for that much? Well, I'd say the suckers are the ones buying them. Maybe in 60 or so years they'll be considered something? Maybe not? Art's in the eye of the beholder, as it should be. If people want to wast...I mean spend that much on an enlarged screenshot, let them.
[1] http://fairuse.stanford.edu/overview/fair-use/four-factors/#...
Richard Prince probably has a brother or a fan who's a copyright lawyer willing to work pro-bono.
I, personally, don't give websites very many pictures. The few pictures I post are images I am giving away. Companies, Artists, and webscrapers are free to do whatever they want with the pictures I give up.
I don't give companies like Instagram any images--period. Facebook gets a picture of the back of my head, and I still use a pseudonym.
Even in high school, and college I never sat for a school picture. I don't like people taking my picture without my permission. I don't like companies whom take, and keep my picture--even for security, and identify purposes. I don't like public cams. I don't like marketing trend of taking employees picture for marketing purposes(Whole Foods, etc), or even employee of the month pictures.
What I am trying to say is I wish people were more concerned about their Images? I'll admit my my concern over the protection of my image, and the images I take borders on an obsession. I sometimes wonder if I'm missing out on opportunities in life by being so private?
I know companies will start running campaigns, and marketing ploys if Not posting becomes a trend. I can see it now, "Don't miss out on life--post more images!" "Don't miss out on networking opportunities--post more images!" "Don't miss out on love--post more images!"
People here know once image is posted it can be copied, manipulated, used without your consent, and sent around the world. The people I am close to don't quite realize once they upload in image it's essentially not their's anymore in any practical sense.
You couldn't, I couldn't, but he can.
I don't think I'd get away with that, so why should he?
Everything else is more or less secondary, both to the market and to the artist as product and manufacturer. In other words, a lost/settled/won lawsuit is not a liability for him.
I guess the big question is does what he has done to the images count as derivative works or not? I say not, since he's used the image unmodified.
I hope at $90k a sale it catches the attention of a pro bono for a nice test case. Would be interesting to see what the courts say.
I think that he's got a pretty good chance that he'd win based on the history, and lower damages in the case of a loss. (Not registered, not otherwise commercial work, no potential loss of sales for original)
Sample one measure of a well known song in a hip hop tune: totally copyright infringement. Get sued for 90k.
Richard Prince, whether you like him or not, is an artist and his medium is typically found/appropriated objects. We, as a society, have rewarded him in the past because there is something interesting in what he does. Oftentimes artists are misunderstood within their lifetimes and the scope of their interests become more apparent with time. So for now, these are super gimmicky and somewhat frustrating, but as the world changes in unexpected ways they will only take on more meaning .