Rastafarian Smoking a Joint photograph by Donald Graham

A Manhattan judge has extinguished a motion by a well-known “appropriation artist” to dismiss an infringement lawsuit filed against him by a photographer who says his photo “Rastafarian Smoking a Joint” was bogarted for one of the artist’s works without permission.

Plaintiff Donald Graham said he took the photo during a 1996 trip to Jamaica, that it was first published in August 1998 and that he registered it with the U.S. Copyright Office on Oct. 20, 2014.

The photo was registered after an Instagram account posted a slightly cropped version of the photo on the social media platform.

Richard Prince, whose use of other artists’ work within his own has landed him in court before, commented on the photo. He later used an enlarged photo of the post in his “New Portraits” exhibition, held in September and October 2014 at the Gagosian Gallery in Manhattan.

Graham sued Prince and the Gagosian for copyright infringement. Prince moved for dismissal, arguing that the work constituted fair use.

But Southern District Judge Sidney Stein found that fair-use defense requires him to conduct a fact-sensitive inquiry that cannot be completed on a motion to dismiss.

The judge also granted Prince’s motion to bar Graham from seeking punitive damages, as they are not available in infringement suits brought under the Copyright Act of 1976.

Prince is represented by Boies Schiller Flexner partners Joshua Schiller and Matthew Schwartz and associates Frederick Lee and Benjamin Margulis.

Graham is represented by Cravath, Swaine & Moore partners David Marriott and David Kappos and associates Christopher Davis and Daniel Richards.