The Richest Photographer in the World

Brad Bohland said:

"...take Prince's work and transform it and charge $900,000....I assert copyright on that..."

Here's hoping you won't sue me for quoting you.

I know nothing about the guy, but apparently he approved of the one Instagram "victim" who did do a reversal on him. Who knows, maybe he has a sense of humor.

In any case, I'd love to see it taken to court just to see how it would turn out. At least a couple of lawyers have said they were certain he would lose, but I guess they're not confident enough to take him on.

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I do not condone copyright violation.

having said that, life is not as simple as that - most of the copyright violations are civil matters in which tort claim requires certain damages to the copyright holder.

To me, the instagram case is the most egregious; the "copyright holders of the instgram" were not damaged (assuming they were not planning to make money on their photos). I suppose they could claim pain and suffering but a "reasonable" person would as why they felt pain and how they suffered.

To me, it's like someone built an expensive work of art from the trash collected and suddenly, the former owners of the trash want the cut.

The article you linked does not seem to address "damage" aspect of the claims.

Those are of course not a legal opinion, not even a good opinion, just my opinion ;-)

mostlyboringphotog said:

To me, the instagram case is the most egregious; the "copyright holders of the instgram" were not damaged (assuming they were not planning to make money on their photos). I suppose they could claim pain and suffering but a "reasonable" person would as why they felt pain and how they suffered.

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They don't need to claim pain and suffering. He violated their copyright; they've got a case. Pretty simple.

mostlyboringphotog said:

To me, it's like someone built an expensive work of art from the trash collected and suddenly, the former owners of the trash want the cut.

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That's not it at all. Not by a long shot.

Many of those individuals had published those images on Instagram for their own purposes, such as self-promotion. One of them (Doe Deere) is the CEO of a cosmetics company, and uses her Instagram for branding purposes.

The images were not "disposed of" or "abandoned" like an item in the trash. They were merely shared on a network with no expectation of direct commercial compensation. You don't lose your copyright because you post your image on Instagram, or any other website.

Further, Prince also did not change the images at all. He just added a comment, and printed them big.

I'm pretty much convinced at this point that he is deliberately spitting in the eye of the appellate court in Cariou. That court found that an appropriation that merely comments on a work (as opposed to transforms it) is not fair use. So what did he do? He made works where all he did was comment on the original, and did not transform it.

I for one think he needs a good hard slap in the courts. However, it's not clear if anyone will sue, and it is clear that his lawyers would spin a stream of pure BS to win the case, regardless of Prince's true intentions.

SpinOne said:

mostlyboringphotog said:

To me, the instagram case is the most egregious; the "copyright holders of the instgram" were not damaged (assuming they were not planning to make money on their photos). I suppose they could claim pain and suffering but a "reasonable" person would as why they felt pain and how they suffered.

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They don't need to claim pain and suffering. He violated their copyright; they've got a case. Pretty simple.

SpinOne said:

To me, it's like someone built an expensive work of art from the trash collected and suddenly, the former owners of the trash want the cut.

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That's not it at all. Not by a long shot.

Many of those individuals had published those images on Instagram for their own purposes, such as self-promotion. One of them (Doe Deere) is the CEO of a cosmetics company, and uses her Instagram for branding purposes.

The images were not "disposed of" or "abandoned" like an item in the trash. They were merely shared on a network with no expectation of direct commercial compensation. You don't lose your copyright because you post your image on Instagram, or any other website.

Further, Prince also did not change the images at all. He just added a comment, and printed them big.

I'm pretty much convinced at this point that he is deliberately spitting in the eye of the appellate court in Cariou. That court found that an appropriation that merely comments on a work (as opposed to transforms it) is not fair use. So what did he do? He made works where all he did was comment on the original, and did not transform it.

I for one think he needs a good hard slap in the courts. However, it's not clear if anyone will sue, and it is clear that his lawyers would spin a stream of pure BS to win the case, regardless of Prince's true intentions.

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How about if I took a photo of Doe Deere on the street and publish it - my 1st amendment right. Right?

I publish a photo of her that she took that she shared, it's a crime against humanity? Really?

Brad Bohland said:

I don't know if he's right, but this definitely adds to the depth of this discussion: http://ipbreakdown.com/blog/richard-prince-is-a-jerkface-but-dont-blame-instagram/

He should put his money where his mouth is and take their case.

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The guy gives some excellent free advice, so you then tell him that he should take the case at his own expense.

You don't want much, do you?

Why don't you make a contribution to the expense of suing? Clearly, you have a deep concern about the matter and feel strongly that it needs to be tried.

mostlyboringphotog said:

How about if I took a photo of Doe Deere on the street and publish it - my 1st amendment right. Right?

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That depends.

If she is walking on the street, and you take a photo for non-commercial or journalistic purposes, you can use the image without a model release. Most types of fine art uses are covered (e.g. selling prints in a gallery).

If you use an image of her for commercial or trade purposes, without her signing a model release, she can sue you.

In some jurisdictions, such as France, street photography is not legal without permission of the subject. And of course, not every nation has explicit or strong protections for free speech.

More to the point: These are not copyright issues, they are issues of privacy and control of one's image.

mostlyboringphotog said:

I publish a photo of her that she took that she shared, it's a crime against humanity? Really?

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I did not say it was a "crime against humanity," or any sort of crime. It's copyright infringement.

Further, the 1st Amendment is not a license to violate copyright. Many appropriation artists have fallen afoul of copyright laws, even when transferring an image into a completely different medium; the aforementioned Damian Loeb, Elizabeth Peyton, Jeff Koons and others have settled or lost those types of cases.

The potential conflicts between 1st Amendment and copyright laws are handled via fair use, whose parameters are worked out in legislation and the courts. I've already explained why I do not regard the Instagram series as qualifying as fair use.

SpinOne said:

mostlyboringphotog said:

How about if I took a photo of Doe Deere on the street and publish it - my 1st amendment right. Right?

Click to expand...

That depends.

If she is walking on the street, and you take a photo for non-commercial or journalistic purposes, you can use the image without a model release. Most types of fine art uses are covered (e.g. selling prints in a gallery).

If you use an image of her for commercial or trade purposes, without her signing a model release, she can sue you.

In some jurisdictions, such as France, street photography is not legal without permission of the subject. And of course, not every nation has explicit or strong protections for free speech.

More to the point: These are not copyright issues, they are issues of privacy and control of one's image.

SpinOne said:

I publish a photo of her that she took that she shared, it's a crime against humanity? Really?

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I did not say it was a "crime against humanity," or any sort of crime. It's copyright infringement.

Further, the 1st Amendment is not a license to violate copyright. Many appropriation artists have fallen afoul of copyright laws, even when transferring an image into a completely different medium; the aforementioned Damian Loeb, Elizabeth Peyton, Jeff Koons and others have settled or lost those types of cases.

The potential conflicts between 1st Amendment and copyright laws are handled via fair use, whose parameters are worked out in legislation and the courts. I've already explained why I do not regard the Instagram series as qualifying as fair use.

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Yeah, I totally agree with you. Just because you label something "art" doesn't mean that you can get away with breaking copyright laws. It seems to me that someone like Richard Prince is well aware of this and that his work is skirting a certain line which is part concept of it (or really the whole concept). The work then is meant to ask questions about authorship and who, if anyone should rightfully own images that are put out into the world via social media. As a conceptual artist, Prince's work is designed to be subversive and it seems likely that a legal battle over the rights to the images that he's appropriated is actually meant to be part of his work.

I'll add here that I'm not necessarily saying that I feel that there's anything particularly clever or deep about what he's doing, but this is just my take on the ideas behind it...

SpinOne said:

mostlyboringphotog said:

How about if I took a photo of Doe Deere on the street and publish it - my 1st amendment right. Right?

Click to expand...

That depends.

If she is walking on the street, and you take a photo for non-commercial or journalistic purposes, you can use the image without a model release. Most types of fine art uses are covered (e.g. selling prints in a gallery).

If you use an image of her for commercial or trade purposes, without her signing a model release, she can sue you.

In some jurisdictions, such as France, street photography is not legal without permission of the subject. And of course, not every nation has explicit or strong protections for free speech.

More to the point: These are not copyright issues, they are issues of privacy and control of one's image.

SpinOne said:

I publish a photo of her that she took that she shared, it's a crime against humanity? Really?

Click to expand...

I did not say it was a "crime against humanity," or any sort of crime. It's copyright infringement.

Further, the 1st Amendment is not a license to violate copyright. Many appropriation artists have fallen afoul of copyright laws, even when transferring an image into a completely different medium; the aforementioned Damian Loeb, Elizabeth Peyton, Jeff Koons and others have settled or lost those types of cases.

The potential conflicts between 1st Amendment and copyright laws are handled via fair use, whose parameters are worked out in legislation and the courts. I've already explained why I do not regard the Instagram series as qualifying as fair use.

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Fair enough; my definition of Jerkface is someone who takes candy out of a child's mouth. That is, if his action took away earnings entitled to the original artist.

BTW, I do not mean to sound to endorse Prince or even respect his other work. I find instagram series is actually intriguing, not from the copyright issues, but just as a commentary to the current zeitgeist.

BTW2, a real Jerkface, IMHO, is the owner of camera that was taken by an ape? and took selfies and he wanted to claim copyright of those photos because it was his camera.

BTW3, there was a case where a winning photo of an island was accused of having stolen image of someone else who did not enter the competition. Turns out two people took the same scene just about at the same time (tourists - imagine that a tourist photo winning a contest - but I digress). My thought was, if one did not enter the competition, why get upset someone winning the competition if some entered, let say "your" photo? Is it not the other person who took the effort to enter the competition?

It's not that I am advocating entering someone else's photo but the gall of someone thinking that someone else could not have taken a similar shot...

BTW4, should the islander of BTW3 entitled to the part of the winning?

mostlyboringphotog said:

mostlyboringphotog said:

....I do not regard the Instagram series as qualifying as fair use.

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Fair enough; my definition of Jerkface is someone who takes candy out of a child's mouth. That is, if his action took away earnings entitled to the original artist.

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Copyright is not about money, it's about control.

It doesn't matter if Prince charged $9 or $90,000 per print, or that they published the image with no direct commercial intent. What matters is that he used their content without their permission.

There was also nothing whatsoever preventing him from asking permission.

mostlyboringphotog said:

BTW, I do not mean to sound to endorse Prince or even respect his other work. I find instagram series is actually intriguing, not from the copyright issues, but just as a commentary to the current zeitgeist.

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I disagree. The works he selected and his comments made him seem like a clueless sexist troll. (Numerous critics noted this as well.)

mostlyboringphotog said:

BTW2, a real Jerkface, IMHO, is the owner of camera that was taken by an ape? and took selfies and he wanted to claim copyright of those photos because it was his camera.

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I don't have a problem with that. The photographer spent several days, following the troupe; he was hauling around 20kg of gear through the jungle; he ran the risk that the monkeys would take off with his gear; he experimented in how to get the shots he wanted; he set up the camera, with a wide angle lens, on a tripod; he edited the photos. The monkeys could not possibly conceive what it meant to push the shutter, other than it making a sound.

It was not a shoot that required zero thought. He did not drop a camera into a zoo pen, and pick it up 30 minutes later.

Or: Let's say I set up a camera on a timer. Who is taking the photos, me or the camera? Should I be denied copyright because the shutter actuation was done via software, rather than a human finger?

He was in the right place at the right time. His effort, his setup, his photos. And whatever rights we may recognize or confer on animals, copyright is not one of them.

mostlyboringphotog said:

My thought was, if one did not enter the competition, why get upset someone winning the competition if some entered, let say "your" photo? Is it not the other person who took the effort to enter the competition?

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Let's diverge from the actual situation, and say that Joe Copier submits my photo under his name. Regardless of the results, he did me no favors by presenting my work as though it was his.

Or, let's say Joe submits my photo under my name. That's still not right, because it is up to me to decide how my images are used, and I may have reasons not to submit it to a competition. Even if there is some benefit, the ends do not justify the means.

mostlyboringphotog said:

BTW4, should the islander of BTW3 entitled to the part of the winning?

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I assume that's up to whoever runs the competition.

"I do not condone copyright violation.

...having said that, life is not as simple as that..."

Copyright law is as complicated as Windows code, for one thing, but that's probably not what you mean.

I would say what makes copyright issues "not simple" is that multiple interests are involved.

I'm in favor of innovators receiving rewards, as I'm sure you are. But there are other issues involved which make it "not as simple as that."

I like your characterization of the Instagram installation as trash art.

"..you then tell him that he should take the case at his own expense."

Darn right. He's advocating on behalf of their cause and a cause he believes in but doesn't act on.

Lawyers take contingency cases all the time, and even do pro bono work for a variety of reasons (give back, reputation, generosity). What's wrong with this guy (and he's not the only one giving moral support sans action)?

Here’s what I have on this topic so far.

1. Famous artist steals worthless Instagram photos and gives them market value by putting his name on them.

2. Copyright militants cry foul. (A few lawyers claim famous artist would lose copyright lawsuit, but unless someone gets off their duff and actually takes legal action, we’ll never know, making the claim merely hypothetical.)

What interests me is the larger issue at stake, which in my opinion goes way beyond mere copyright protection.

Everyone knows Stewart Brand’s phrase “information wants to be free.” It means that information has a natural and unstoppable tendency to spread (think: the Internet).

The companion expression of Brand’s phrase is “information wants to be expensive,” which means that people tend to make information their personal property so they can profit from it.

Tying these two phrases together is Brand’s belief that both sides are in eternal tension: the individual desire to profit from ideas will always be opposed by society’s desire to benefit from ideas.

I would add a third phrase to Brand’s two, which is that “information wants to be marketed now.”

This is the larger theme I see in the Instagram case. Someone has an idea, but doesn’t have the resources to market it. Someone else does and appropriates it.

The originator loses, but society wins. Copyright laws should recognize this situation and adjudicate/legislate accordingly (acknowledging that “information wants to be marketed now”).

That’s the larger issue for me: maybe it should be easier to appropriate and market ideas that aren’t going anywhere.

Brad Bohland said:

"..you then tell him that he should take the case at his own expense."

Darn right. He's advocating on behalf of their cause and a cause he believes in but doesn't act on.

Lawyers take contingency cases all the time, and even do pro bono work for a variety of reasons (give back, reputation, generosity). What's wrong with this guy (and he's not the only one giving moral support sans action)?

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When someone asks you for advice on photography, is it incumbent on you to take the picture for them?

"When someone asks you for advice on photography, is it incumbent on you to take the picture for them?"

When I brag about IQ or an image I've taken, yes, it's incumbent on me to prove it.

Why will no one lift a finger to help the Instagram victims?

It’s a guaranteed case: the guy stole their property, no question, so it’s a sure win. He’s rich, so the purse is large. And, it’s a just cause.

A solid case, big purse, and righteous cause; no decent lawyer would refuse that package. Dozens of them should be lining up to save the day.

And yet, no one shows. What’s with that? They don’t like photography? They’re afraid of getting an STD? Their tattoos aren’t cool enough to impress Instagram fans? They haven’t passed the bar yet?

The only one with initiative in this story is Richard Prince. He chose the right crowd to pick pocket. “He stole our pictures. We’d win a copyright infringement suit, but we’re too lame to take him to court. Wah, wah.”

The more of their money that goes into circulation, the better.

SpinOne said:

mostlyboringphotog said:

SpinOne said:

....I do not regard the Instagram series as qualifying as fair use.

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Fair enough; my definition of Jerkface is someone who takes candy out of a child's mouth. That is, if his action took away earnings entitled to the original artist.

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Copyright is not about money, it's about control.

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Indeed and that control should have a "reasonable" end if it's published.

SpinOne said:

It doesn't matter if Prince charged $9 or $90,000 per print, or that they published the image with no direct commercial intent. What matters is that he used their content without their permission.

There was also nothing whatsoever preventing him from asking permission.

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I'm all for giving the credit - and I am in the mind to give the credit even if the original author would rather not ;-)

SpinOne said:

SpinOne said:

BTW, I do not mean to sound to endorse Prince or even respect his other work. I find instagram series is actually intriguing, not from the copyright issues, but just as a commentary to the current zeitgeist.

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I disagree. The works he selected and his comments made him seem like a clueless sexist troll. (Numerous critics noted this as well.)

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I kinda doubt that he was "clueless". My penny is that he expected to be criticized more than "revered".

SpinOne said:

SpinOne said:

BTW2, a real Jerkface, IMHO, is the owner of camera that was taken by an ape? and took selfies and he wanted to claim copyright of those photos because it was his camera.

Click to expand...

I don't have a problem with that. The photographer spent several days, following the troupe; he was hauling around 20kg of gear through the jungle; he ran the risk that the monkeys would take off with his gear; he experimented in how to get the shots he wanted; he set up the camera, with a wide angle lens, on a tripod; he edited the photos. The monkeys could not possibly conceive what it meant to push the shutter, other than it making a sound.

It was not a shoot that required zero thought. He did not drop a camera into a zoo pen, and pick it up 30 minutes later.

Or: Let's say I set up a camera on a timer. Who is taking the photos, me or the camera? Should I be denied copyright because the shutter actuation was done via software, rather than a human finger?

He was in the right place at the right time. His effort, his setup, his photos. And whatever rights we may recognize or confer on animals, copyright is not one of them.

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I disagree; if we think one who pushed the shutter button is the who owns the copyright unless specifically assigned to someone else, then the simian is the copyright holder as the simian did not agree to assign the copyright. I say that to show how ridiculous the copyright has become.

SpinOne said:

SpinOne said:

My thought was, if one did not enter the competition, why get upset someone winning the competition if some entered, let say "your" photo? Is it not the other person who took the effort to enter the competition?

Click to expand...

Let's diverge from the actual situation, and say that Joe Copier submits my photo under his name. Regardless of the results, he did me no favors by presenting my work as though it was his.

Or, let's say Joe submits my photo under my name. That's still not right, because it is up to me to decide how my images are used, and I may have reasons not to submit it to a competition. Even if there is some benefit, the ends do not justify the means.

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I put "your" photo in quotes because I would think someone willfully submitting someone else's photo is not only extremely rare but the worries by original photographers that their work is being stolen left and right verges on "megalomaniac"ism. If someone did that for real, I'll be leading the pitchfork brigade.

SpinOne said:

SpinOne said:

BTW4, should the islander of BTW3 entitled to the part of the winning?

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I assume that's up to whoever runs the competition.

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My point is "original work" is extremely rare and most of us should give some deference that "copying" is not like molesting...

I see people doing art until new die rich

Brad Bohland said:

"When someone asks you for advice on photography, is it incumbent on you to take the picture for them?"

When I brag about IQ or an image I've taken, yes, it's incumbent on me to prove it.

Why will no one lift a finger to help the Instagram victims?

It’s a guaranteed case: the guy stole their property, no question, so it’s a sure win. He’s rich, so the purse is large. And, it’s a just cause.

A solid case, big purse, and righteous cause; no decent lawyer would refuse that package. Dozens of them should be lining up to save the day.

And yet, no one shows. What’s with that? They don’t like photography? They’re afraid of getting an STD? Their tattoos aren’t cool enough to impress Instagram fans? They haven’t passed the bar yet?

The only one with initiative in this story is Richard Prince. He chose the right crowd to pick pocket. “He stole our pictures. We’d win a copyright infringement suit, but we’re too lame to take him to court. Wah, wah.”

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The photographers are the injured party, they need to take the initiative.

But they aren't doing it.

RichRMA said:

The more of their money that goes into circulation, the better.

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There is that aspect of it.

Brad Bohland said:

Here’s what I have on this topic so far.

1. Famous artist steals worthless Instagram photos and gives them market value by putting his name on them.

2. Copyright militants cry foul.

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This is not "militant" copyright. This is BASIC copyright.

The images were recently created; the creators are easily identified and contacted; it is their right to publish it without someone else taking advantage of them.

Brad Bohland said:

This is the larger theme I see in the Instagram case. Someone has an idea, but doesn’t have the resources to market it. Someone else does and appropriates it.

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Sorry, wrong.

Almost none of the images were generated or published with the expectation that someday, they would be worth $90,000 per print.

Prince's appropriation also trivialized the images that were generated and published for other types of marketing purposes.

You seem to suggest that the images had some latent commercial value that it failed to achieve, and this is blatantly incorrect. Prince could have selected a completely different set of images, with the same result. The content of the images were not relevant to what Prince was doing (except to demonstrate his own privileged, sexist and clueless position).

Nor does his profiting off of their work justify his actions. I should not be able to print my own book of Richard Avedon images, proclaim that I'm "creating new value," and collect all the profits.

Brad Bohland said:

The originator loses, but society wins. Copyright laws should recognize this situation and adjudicate/legislate accordingly (acknowledging that “information wants to be marketed now”).

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Society does not "win" when people's rights are violated.

mostlyboringphotog said:

SpinOne said:

Copyright is not about money, it's about control.

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Indeed and that control should have a "reasonable" end if it's published.

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How is publishing an image on Instagram "unreasonable?"

Let's say I own 10 acres of land, almost all of which is unused. Can a developer start building on my property, without permission or compensation, and justify it by saying my use was "unreasonable?"

It's up to the copyright holder to determine what is or is not a reasonable use. Not the person who seeks to violate copyright laws to their own advantage.

mostlyboringphotog said:

mostlyboringphotog said:

The works he selected and his comments made him seem like a clueless sexist troll. (Numerous critics noted this as well.)

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I kinda doubt that he was "clueless". My penny is that he expected to be criticized more than "revered".

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He's aware that he is violating copyright, and IMO taunting the courts.

However, his sexist and clueless attitude is evident, from a) selection of images, focusing heavily on half-naked young women b) willful ignorance of the identities of his victims c) the comments he added to the posts (including trying to make up his own Internet slang) and d) comments subsequently made about the works.

mostlyboringphotog said:

mostlyboringphotog said:

He was in the right place at the right time. His effort, his setup, his photos. And whatever rights we may recognize or confer on animals, copyright is not one of them.

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I disagree; if we think one who pushed the shutter button is the who owns the copyright unless specifically assigned to someone else, then the simian is the copyright holder as the simian did not agree to assign the copyright. I say that to show how ridiculous the copyright has become.

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Non-humans cannot hold a copyright.

The monkeys had absolutely no idea what they were doing when they pressed the button. This is completely different than a human being pushing a shutter.

Even if a human is pushing the shutter, that does not automatically make them the copyright holder. E.g. a photographer can construct a set, light it, hire the makeup artist, and choose to let the subject push the shutter (or use an automated process to fire the shutter). It's still the photographer's idea, setup, effort and choice to give the subject a degree of control.

mostlyboringphotog said:

mostlyboringphotog said:

Or, let's say Joe submits my photo under my name. That's still not right, because it is up to me to decide how my images are used, and I may have reasons not to submit it to a competition. Even if there is some benefit, the ends do not justify the means.

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I put "your" photo in quotes because I would think someone willfully submitting someone else's photo is not only extremely rare but the worries by original photographers that their work is being stolen left and right verges on "megalomaniac"ism. If someone did that for real, I'll be leading the pitchfork brigade.

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Uh, hello? People almost never submit someone else's photos to a contest. However, copyright violations of photographic works are quite common, and have been happening for years. Photographers, and other creatives who put their work on social media for their own purposes, certainly have cause for concern.

mostlyboringphotog said:

My point is "original work" is extremely rare and most of us should give some deference that "copying" is not like molesting...

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Who made you the ultimate arbiter of what is and is not new?

While there is no doubt that there is a tremendous amount of repetition in images taken today (good luck taking a truly new image of the Taj Mahal), that does not change the fact that lots of new images are constantly generated, and ought to receive a basic level of protection.