Donald Graham, Rastafarian Smoking a Joint, 1996 (left). Richard Prince, Untitled, 2014 (right).

Richard Prince’s Motion to Dismiss Copyright Infringement Lawsuit Is Denied

On Tuesday, July 18, a Manhattan federal court judge rejected appropriation artist Richard Prince, Gagosian Gallery, and Larry Gagosian’s request to dismiss the copyright infringement lawsuit filed by photographer Donald Graham, reports Laura Gilbert of the Art Newspaper.

According to the suit, Graham claims that Prince used his photograph Rastafarian Smoking a Joint, 1996, without his consent. Prince incorporated the image into a work in his Instagram series for his “New Portraits” exhibition, which was held at Gagosian Gallery in New York in 2014.

Prince’s lawyers defended his untitled work, arguing that the artist’s use of Graham’s photograph was transformative and therefore qualifies as fair use. Judge Sidney Stein noted that Prince had cropped the original image and added comments below its subject, but then declared that “the primary image in both works is the photograph itself.” He added, “Prince has not materially altered the composition, presentation, scale, color palette, and media originally used by Graham.” Stein decided that he could not determine whether Prince’s piece added a new meaning to Graham’s work without consulting an expert in art criticism.

Prince’s lawyer, Joshua Schiller, of Boies, Schiller & Flexner, remains confident that they will be able to prove that the work is protected under fair use. The artist’s Instagram series also prompted several other defendants, including photographer Eric McNatt and California-based makeup artist and model Ashley Salazar, to take legal action against Prince.