Richard Prince, fair dealing and “owning” your content on Instagram

U.S. artist, Richard Prince, has generated considerable mainstream publicity by appropriating images he found on Instagram and featuring them in his “New Portraits” collection. A number of copyright lawyers in the U.S. and Canada, including myself, have also weighed in on the legality of Prince’s appropriation art.

Most of the legal discussion has centred on whether and to what extent Prince is protected from liability for copyright infringement under the doctrine of fair dealing (or fair use in the United States). In fact, a U.S appeals court previously accepted Prince’s fair use defence on the basis that his use of others’ photographs in his own works was “transformative” since it presented them in a different context.

I have suggested that a fair dealing defence would be less likely to succeed in Canada. First, “transformative use” has not been recognized by Canadian courts as a standalone form of fair dealing. Second, for a reproduction of another’s work to constitute fair dealing in Canada, it must fall into a recognized category of use, namely, use for the purposes of research, private study, news reporting, criticism, parody or satire. Prince’s use does not obviously fall into any of these categories. Third, while the categories of fair dealing are flexible, the use must ultimately be “fair”. And one of the factors for assessing whether a use is fair is how commercial the use is. Prince’s use is brazenly commercial: he is enlarging other people’s photographs, altering them slightly, hanging them in a gallery and selling them for $100,000.

Another interesting legal issue coming out of this story is the rights and obligations of Instagram itself, relative to the rights of the people who post their own images on its platform and the rights of someone like Richard Prince to appropriate those images.

Instagram makes much of its Terms of Use which say that you “own” all the content you post. This works out well for someone like Richard Prince because no doubt he would rather be sued for copyright infringement by some teenager who posts photographs of herself lying in bed (and who “owns” the content) than by Instagram itself. It also works out well for Instagram because it gets to stand back and enjoy all the publicity from a story like this and to look good for saying that its users “own” their content without assuming any obligation to protect the rights of its users. As for its users, “ownership” of their content isn’t quite what it sounds like. That is because while they retain copyright in their content, they are at the same time granting to Instagram a royalty-free, transferable, sub-licensable, word-wide right to use the content as it wishes, in accordance with its Terms of Use.

In fact, if it wanted to, Instagram could grant to Richard Prince a license to “make art” out of any photograph you post on its platform without even asking you. And it could collect a royalty from Richard Prince under that license without having to pass any of the proceeds along to you. So much for being the “owner” of your content.