Pryor Cashman Partner Megan Noh, co-chair of the Art Law Group, spoke with The Art Newspaper about the anticipated trials in two lawsuits against artist Richard Prince, in which photographers claimed that his "New Portraits" series (commonly known as the "Instagram" works) violated their copyrights:
The lawsuits against Richard Prince had been expected to involve more of a side-by-side analysis of imagery, perhaps raising fundamental questions about the legality of appropriation art and offering guidance for artists. Megan E. Noh, a partner in the New York law firm Pryor Cashman, says that in both cases the jury would "no doubt also be instructed to assess the so-called 'transformativeness' of Prince's actual New Portraits series works, including their new meaning or message as compared to McNatt's and Graham's photographs."
As The Art Newspaper's story was being prepared for publication – and just ahead of the scheduled trials – the photographers settled with Prince. As reflected in the "Final Judgments" entered on both dockets, the parties apparently stipulated that Prince and his representative galleries must refrain from reproducing, modifying, preparing derivative works from, displaying, selling, offering to sell, or otherwise distributing the disputed photos and related Prince artworks; Prince also agreed to pay the plaintiffs in an amount equal to five times the sales price of each relevant "New Portrait."
Because these judgments are not reasoned opinions by Judge Sidney Stein – i.e., they do not reflect the Southern District's application of legal precedent to the facts of the cases nor any substantive analysis – they lack precedential effect. This leaves the post-Warhol fair use landscape no clearer than before; artists engaging in appropriative practices must continue to carefully assess the specific facts of their unauthorized uses of other creators' visual material based on the "downstream use" guidance provided by the U.S. Supreme Court's Warhol decision.
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