Forget the Mona Lisa and every single painting of young girls sensually lying naked in their perfectly shaped bodies. Forget the well-framed combination of colours and the realistic atmosphere.
Now, start thinking about your digitally double-filtered, spontaneous iPhone selfies .
That’s postmodernity, the time of the fragmentation of the subject, of globalisation, psychoanalysis, inter-textuality and consumer involvement. In other words, this is the time where everything is art apart from what is supposed to be art.
In this new context, appropriation art, a movement defined by the Tate gallery as “the more or less direct taking over into a work of art a real object or even an existing work of art” can be considered as one of the main controversial areas of study, in so far as it stretches both the definition of art itself and of original protectable work under copyright work.
The perfect expression of these issues is the recent Donald Graham claim against Richard Prince, a famous appropriation artist accused by the claimant of unauthorized use of one of his images “Rastafarian Smoking a Joint” in his 2014 show “New Portraits”, a collection Instagram pictures on canvas.
Furthermore, this is not the first time the artist had troubles because of this practice: in 2008 he had already been sued by the photographer Patrick Cariou for the incorporation of his photos in the “Canal Zone” series. On that occasion however, the judges, specifying the criteria to get protection under the “fair use doctrine”, ruled on the side of Prince, because of the “transformative nature” of his work.
The outcome could be different in the current situation. In particular, from a legal point of view, apart from privacy concerns, there are three main issues to consider.
Firstly, the need of assessing whether or not a transformative use of the work may be claimed also in a case where the artist’s contribution was limited to the addition of a nonsensical comment under the picture.
Secondly, the issue of liability of the gallery for its contribution to the commercialisation of the work, considering the fact that it had been previously involved in litigation against Cariou and had received requests to cease and desist from Graham before the exhibition.
Finally, the issue on whether under the UK legal system, in the lack of the concept of fair use, the new parody exception would apply.
In anticipation of the ruling, the best we can do is to update our Instagram profile, since maybe, one day, even our “almost-no-filter” pictures could be sold for $90,000.
 (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken, and (4) effect of the use on the potential market
 Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative
Assistant Editor, QMJIP