On Richard Prince
I've been thinking a lot about the Richard Prince controversy. My initial response is to be outraged, but the more I think about it, the more uncertain I am.
Part of the problem, I think, is that critics are unintentionally conflating different arguments - none of which on their own might stand - while defenders are too casually dismissing the real problems.
Since this is a complicated issue, I'm going to address it socratically.
1. Is this a copyright problem?
No, or at least this is the least convincing argument against Prince. Part of the complication is that his most overt contribution is the comment he makes and many of the comments seem, casually, not to add a lot to the picture. But that suggests that the images are to be seen in isolation and not as part of a collection (or even a career). Choosing which images to appropriate is, itself, an artistic choice. Moreover, picking the right comment (even if it seems vapid) is itself a skill.
2. What about other privacy torts?
This could be more of an issue. This seems to be more of a appropriation of likeness issue or maybe an invade privacy. While at first glance, the first seems like it might fit, appropriation was designed to prevent commercial exploitation. While Prince is selling the images at a premium, it is hard to argue this is a commercial as compared to an artistic endeavor. In contrast, invasion of privacy probably would not fly because the images were taken from public instagram accounts - so they were voluntarily shared with the public.
3. Does it matter that Prince is an artist?
It matters, and it certainly matters to his defenders. Consider this - when a war photographer takes photographs of a massacre, that photographer does not need to get permission to distribute those photos. We simply treat news differently than other endeavors out of the belief that the purpose that news serves - to inform the public about important issues - is so critical as to justify most intrusions.
My suspicion is that Prince and his supporters believe art fulfills the same critical purpose and should be treated the same way.
My instinct is to disagree, but I think it is an arguable, good faith point. However, even if one agrees that artists should be granted additional leeway, news reporters (and photographers) still face legal limitations.
4. Is what Prince did illegal?
Probably not.
5. Is this a credit issue?
Probably. Now, to his credit, Prince seems to be open about - and thus provide credit to - the original sources of his material. So this is a criticism leveled less at him and more at culture in general (and the artistic community) that may give Prince a disproportionate share of the credit (and all of the profit) from his actions.
6. Are Prince's actions immoral?
This is the more troublesome issue. My suspicion is that part of the concern is tied more to concepts of plagiarism and unjust enrichment. However, unlike a plagiarist, there is nothing inherently dishonest in Prince's actions: he is open about the source of the material and gives credit (by retaining the instagram screen names).
7. Is this an etiquette issue?
Yes.
Consider Weird Al, who is in an even stronger position than Prince legally. From Weird Al's FAQ:
Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.
As a matter of courtesy, Weird Al's position is better (and by ensuring writers get a portion of the royalties, his position is more fair).
8. Is Internet outrage scary and occasionally improper?
Yes. Death threats - or really threats of any kind - are not kosher.
9. So is this much ado about nothing?
No. The right to peacefully protest - even legal activity - is at least as sacrosanct as the rights to cover news or produce art.
And while what Prince did is probably legal, he is playing around in the gray areas while acting like a dick. That probably should get people mad (which is probably what he wants).
Hell, if people want to use hyperbolic rhetoric to illuminate problems ("Richard Prince is a criminal"), that's perfectly legitimate too. It's just mostly inaccurate. But we have no obligation to be precisely accurate about our scorn.
Part of the problem, I think, is that critics are unintentionally conflating different arguments - none of which on their own might stand - while defenders are too casually dismissing the real problems.
Since this is a complicated issue, I'm going to address it socratically.
1. Is this a copyright problem?
No, or at least this is the least convincing argument against Prince. Part of the complication is that his most overt contribution is the comment he makes and many of the comments seem, casually, not to add a lot to the picture. But that suggests that the images are to be seen in isolation and not as part of a collection (or even a career). Choosing which images to appropriate is, itself, an artistic choice. Moreover, picking the right comment (even if it seems vapid) is itself a skill.
2. What about other privacy torts?
This could be more of an issue. This seems to be more of a appropriation of likeness issue or maybe an invade privacy. While at first glance, the first seems like it might fit, appropriation was designed to prevent commercial exploitation. While Prince is selling the images at a premium, it is hard to argue this is a commercial as compared to an artistic endeavor. In contrast, invasion of privacy probably would not fly because the images were taken from public instagram accounts - so they were voluntarily shared with the public.
3. Does it matter that Prince is an artist?
It matters, and it certainly matters to his defenders. Consider this - when a war photographer takes photographs of a massacre, that photographer does not need to get permission to distribute those photos. We simply treat news differently than other endeavors out of the belief that the purpose that news serves - to inform the public about important issues - is so critical as to justify most intrusions.
My suspicion is that Prince and his supporters believe art fulfills the same critical purpose and should be treated the same way.
My instinct is to disagree, but I think it is an arguable, good faith point. However, even if one agrees that artists should be granted additional leeway, news reporters (and photographers) still face legal limitations.
4. Is what Prince did illegal?
Probably not.
5. Is this a credit issue?
Probably. Now, to his credit, Prince seems to be open about - and thus provide credit to - the original sources of his material. So this is a criticism leveled less at him and more at culture in general (and the artistic community) that may give Prince a disproportionate share of the credit (and all of the profit) from his actions.
6. Are Prince's actions immoral?
This is the more troublesome issue. My suspicion is that part of the concern is tied more to concepts of plagiarism and unjust enrichment. However, unlike a plagiarist, there is nothing inherently dishonest in Prince's actions: he is open about the source of the material and gives credit (by retaining the instagram screen names).
7. Is this an etiquette issue?
Yes.
Consider Weird Al, who is in an even stronger position than Prince legally. From Weird Al's FAQ:
Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.
As a matter of courtesy, Weird Al's position is better (and by ensuring writers get a portion of the royalties, his position is more fair).
8. Is Internet outrage scary and occasionally improper?
Yes. Death threats - or really threats of any kind - are not kosher.
9. So is this much ado about nothing?
No. The right to peacefully protest - even legal activity - is at least as sacrosanct as the rights to cover news or produce art.
And while what Prince did is probably legal, he is playing around in the gray areas while acting like a dick. That probably should get people mad (which is probably what he wants).
Hell, if people want to use hyperbolic rhetoric to illuminate problems ("Richard Prince is a criminal"), that's perfectly legitimate too. It's just mostly inaccurate. But we have no obligation to be precisely accurate about our scorn.