Reactions to the Richard Prince Instagram story continue to filter in, and highlight the perpetual confusion between what is publicly available and what is in the public domain. They are not the same thing, with important legal consequences.
The most prominent response to date has come from the “Suicide Girls,” who responded to word that Prince had used a photograph from their Instagram account by announcing that they would be selling their own versions (with the final word under comments) for $90 rather than $90,000.
The Suicide Girls describe themselves as "an alternative to the mainstream media's obsession with the silicone enhanced Barbie dolls and the incredible shrinking starlets." Founder “Missy” told ArtNet:
While I understand the conversation that he's trying to start, and that we're all talking about copyright and art in the digital age, I feel like $90,000 is a crazy amount to spend. . . He's starting this conversation while utilizing people that are from our sort of scene—girls that are beautiful and unique. They could benefit from $90,000 dollars. None of them could afford that. So we wanted to create something that they could afford.
This story touches a refrain that resurfaces every few years: how does new technology affect existing concepts of property and copyright law? In fact, in many ways they represent an even greater risk because a single infringement can quickly be multiplied exponentially. An image that can be captured can be copied if there is a defensible fair use, of which comment and criticism are the easiest to identify. It is a bit tired to suggest that somehow emerging media have rendered copyright obsolete. Yet the misunderstanding persists. Partly it comes from the creative ethos of social media, in which sharing and appropriation are essential components. That leads to overstatements like this one, from critic Jerry Saltz of New York magazine on the site vulture.com:
Never mind that all these images shadow us everywhere now and already exist in a public uncopyrighted digital realm. . . .As for him "stealing other people's pictures," my view of an artist using other people's Instagram pics is no different than an artist using any other material. By now, we have to agree that images — even digital ones — are materials, and artists use materials to do what they do. Period. In my way of thinking, too many artists are too wed to woefully outmoded copyright notions - laws that go against them in almost every case.
These images are not uncopyrighted. Instagram photos are not in the public domain. The public domain applies to works over which no copyright exists. The ease with which something can be copied has nothing to do with whether it is in the public domain. If what Prince is doing is acceptable it is as a fair use under the statute, not because of a lack of copyright in the first instance. The shadow of Prince v. Cariou is long indeed, but it hardly means that copyright is outmoded, and the suggestion that copyright goes against the source artists “in almost every case” is not true, and certainly premature. Saltz makes an eloquent case for the artistic value of what Prince is doing, but it does not wash away the copyright law.
The point here is not that Prince will be found liable for infringement; in the grand scheme, he probably won’t. But assuming that any image on the Internet is fair game for any other use because Prince can do what he does is to take a huge risk, and one that should not be done cavalierly. Copyright may seem outdated, but it’s the law, and Richard Prince probably won’t be there to defend you when that time comes.