LA photographer takes on Richard Prince in new lawsuit

Donald Graham might have a stronger case than previous attempts against the appropriation artist

Another photographer, the Los Angeles-based Donald Graham, has sued the artist Richard Prince for copyright infringement—and he may have a stronger case than previous attempts against the artist, who often appropriates found imagery in his work.

Graham filed suit against Prince, Gagosian Gallery and Larry Gagosian on 30 December in Manhattan federal court, alleging that his copyright was infringed. Prince enlarged a screen print of Graham’s photograph Rastafarian Smoking a Joint and exhibited it in the show New Portraits, held at Gagosian’s New York gallery in September and October 2014.

The photographer Patrick Cariou had previously sued Prince and Gagosian over copyright for the use of his photographs, also of Rastafarians, in Prince’s Canal Zone series of paintings. A lower court ruled in favour of Cariou, but the appellate court reversed the decision in 2013, finding that Prince’s paintings were “transformative” and therefore fell under fair use.

The appelate court emphasised two things in its decision: whether the works were sufficiently different in a side-by-side comparison and the effect of Prince’s work on Cariou’s market. Since Prince had used colour to paint over the black-and-white photographs, added elements such as guitars, and his works were significantly larger than Cariou’s, the court said they were “fundamentally different”. Prince’s paintings were jarring, the court added, compared to Cariou’s serene photographs.

The court also found Prince’s work didn’t affect Cariou’s market since “Prince’s audience is very different”. The court noted that Prince’s works sold in the millions whereas Cariou had earned just over $8,000 in royalties, did not aggressively market his work, and had sold just four prints to people he knew.

Graham’s allegations may put his case on a different footing. According to his complaint, the differences between his photograph and Prince’s print are minimal: Prince cropped the top and bottom slightly and framed the photograph with the design elements of Instagram, including four lines of text comments. The dimensions are almost the same:  Graham has a limited edition print available at 4 feet by 5 feet; Prince’s work is 4 feet ¾ inches by 5 feet 5 ¾ inches.

The complaint also describes a market more similar to Prince’s. Unlike the relatively obscure Cariou, Graham’s photographs have been exhibited at the Met and other museums and he is represented by A. Galerie in Paris.  His work has appeared in Vogue and other publications, and the photograph in question appeared in Communication Arts magazine as part of an award-winning series, the complaint says.  

Does Graham’s case differ enough from Cariou’s for a court to find infringement?  Graham’s lawyers at the firm Cravath, Swaine & Moore declined to comment. Prince and Gagosian did not respond to inquiries.