“Rastafarian Smoking a Joint” photograph by Donald Graham
An enlarged print of an Instagram post containing a copyrighted photo counts as a transformative use, an attorney for the “appropriation artist” whose use of other artists’ material in his own works has made him no stranger to the courts argued before a federal judge late Tuesday afternoon.
At issue in photographer Donald Graham’s lawsuit against Richard Prince is a black-and-white photo titled “Rastafarian Smoking a Joint.”
Graham alleges that he took the photo during a 1996 trip to Jamaica and that it was first published in August 1998. The work was registered with the U.S. Copyright Office on Oct. 20, 2014.
But the registration came after an Instagram user with the username “Indigoochild” posted a slightly cropped version of the photo that was reposted by another user, “Rastajay92,” with the comment “Real Bongo Nyah man a real Congo Nyah,” a reference to a Stephen Marley song.
Using his own account, Prince commented on Rastajay92′s photo: “Canal Zinian da lam jam.”
What that phrase means was among the questions that Southern District Judge Sidney Stein had for Prince’s attorney Joshua Schiller, a partner at Boies Schiller Flexner, during the hearing pertaining to Prince’s motion to dismiss.
Schiller said the phrase refers to his client’s appreciation for music, but that it “means different things to different people.”
“Sounds like music to me,” he said after repeating the phrase three times.
The Instagram post containing “Rastafarian” was Prince’s “New Portraits” exhibition featured in September and October 2014 at the Gagosian Gallery in Manhattan, which consisted of other canvas prints of blown-up screenshots of Instagram posts.
The image was also visible on a billboard for the exhibit at 50th Street and the West Side Highway.
In 2015, Graham filed a copyright infringement suit against Prince and the gallery for the use of the image in the work and on the billboard, alleging in his original lawsuit that Prince achieved notoriety in the appropriation art industry for his “blatant disregard of copyright law.”
After the filing, Prince took to Twitter to vent in a series of posts, including with a compilation image of the Rastafarian and ad for alcohol with the comment: “Booze Pot Sex. I guess I was wrong. (Memo to Turner: I DID NOT take make create this montage).”
Since then, Graham has amended his lawsuit to allege that the Twitter message constituted a third infringement.
In the motion to dismiss the suit, Prince’s attorneys argue that, while Graham’s work captures “the spirit and gravitas of the Rastafarian people,” his piece may be portrayed as commentary on the “power of social media to broadly disseminate others’ work.”
Schiller noted at the hearing that his client printed in image that was first reposted by other Instagram users.
