Donald Graham’s photography, left, and Richard Prince’s Instagram print, right

In two cases testing copyright law in social media, the artist Richard Prince is asking a federal court in Manhattan to rule that two of his Instagram-based works constitute fair use of photographs taken by others.

Both are from Prince’s 2014 New Portraits series, in which he enlarged and printed Instagram posts with such images. One uses a Donald Graham photograph, Rastafarian Smoking a Joint, and the other Eric McNatt’s photograph of the musician and artist Kim Gordon. Before enlarging the posts, Prince deleted some comments and added one of his own but left the photographs largely unaltered. Graham and McNatt sued, alleging copyright infringement.

Last year a US District Court judge rejected Prince’s motion to dismiss Graham’s case. To constitute fair use, the judge said, the “reasonable observer” must conclude that Prince imbued Graham’s photograph with new meaning, expression or purpose. Because Prince used essentially the entirety of Graham’s photograph without “substantial aesthetic alterations”, he said, the artist needed “substantial evidentiary support” to prove that his work was transformative. Read more