In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?

This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.

The article, written by Randy Kennedy, is about the working methods of the artist
Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.

One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.

The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society – images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.

But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.

The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”

Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition – the conception, the pose, the exact moment to capture – these things were decided by Krantz and re-used by Richard Prince.

The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…

Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.

My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
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In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
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(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue – the effect upon the potential market for or value of the copyrighted work – when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.

Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”

Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
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UPDATE: A year later, in December 2008, Richard Prince would lose a copyright infringement suit when the judge ruled his use of photographs by Patrick Cariou was not Fair Use as outlined by copyright law.
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