Be careful what you selfie. A controversial artist recently challenged the bounds of Instagram’s photo-sharing service. Richard Prnice, an “appropriation artist,” sparked controversy by showcasing other Instagrammers’ screenshots in an art exhibit.  The exhibit features replicas of unwitting Instagram users’ photos, unaltered save a single added comment tacked at the end of each one. Prince’s unwilling subjects have reacted to his conduct by alternately expressing outrage and mimicking his misappropriation scheme. Instagram said the subjects should enforce potential infringements on their own, since they occurred off the platform. The controversy has not deterred interest: Prince has sold nearly all the prints for $90,000 each.

Gimmick or not, Prince’s tactics may hold significant implications for the future of copyright law. Prnice’s slight modifications to other people’s intellectual property arguably pushes the limits of the fair use doctrine. The fair use doctrine permits limited use of copyrighted material without permission from the owner. The doctrine aims to balance protection of creative property with promotion of the public’s intellectual enrichment. Prince is no stranger to the fair use doctrine. In the recent Cariou v. Prince case, the Second Circuit held Prince’s appropriation of another photographer’s works by painting over them largely constituted transformative use. The court noted that transformative use fell in the “breathing space” of the fair use doctrine. Also, the court explained that it “adds something new” to the original creation. The Cariou court held the Price’s re-configured works transformative because their aesthetics differed from the original artist’s.

Here, it seems likely Price would seek to wield the same argument.  However, Price’s screenshots arguably stretch the idea of transformative use to its outer limits. Tweaking other people’s misappropriated, amateur photos with nonsensical lines hardly seems to manifest a different aesthetic – at least, not one a meaningful one. Should a lawsuit over copyright infringement ensue, the court walks a fine line. Favoring Price on a technicality may jeopardize other people’s intellectual property rights. Also, it may mock the integrity of the fair use concept. However, ruling against Price may appear too subjective, like the court was evaluating his artwork instead of promoting copyright’s aims. Regardless, it seems likely Price will continue to push the bounds of appropriation until the law halts his acts of appropriation. In the meantime, Instagram users wary of inadvertently having their photos framed in a stranger’s hallway may want to reset their privacy settings.

Kelsey Zottnick

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