You Just Used My Picture Without Permission?

Young couple on holidays taking selfieArtist Richard Prince’s exhibit entitled “New Portraits’’ was displayed at New York City’s Gagosian Gallery and Frieze New York during the summer of 2015.  This exhibit featured screenshots of other people’s Instagram photos.  These screenshots were not altered.  They were simply the pictures that Instagram users posted, with an addition of Prince’s comments in the comment section of the post. What is remarkable is that the individuals whose likenesses and photographs were used were unaware of the use.  Prince did not ask for permission or provide notice.  He just used the pictures.  Apparently, the art world was pleased with his work, and he has reportedly sold many of the individual works for anywhere from $90,000 to $1 million.  How much of that went to the Instagram poster?  Likely nothing.

How can this be?  Well, ultimately we will see if it can be.  There would seem to be compelling copyright infringement arguments as well as rights of publicity arguments (for misappropriation of the person’s likeness). A make-up artist whose likeness was used filed a lawsuit claiming Prince wrongfully created copies of her photo without her consent and “engaged in acts of widespread self-promotion of the copies directed at the public at large.” Lawsuits have also been brought by photographers who claim that Prince stole and unfairly profited from their work.

The other side of the argument is that Prince’s use meets the “fair use” defense to a copyright infringement claim. Under copyright law, “fair use” is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. As we consider Prince’s defense, the questions then become: (1) Were the Instagram photos that Prince took screenshots of copyrighted material; (2) Since the photos were posted on and taken from social media does that make a difference; and (3) Are commentary on photos obtained from social media sufficient to transform the source material to qualify as fair use? All lawsuits pertaining to Prince’s use are currently being transferred to the appropriate federal court or are pending adjudication. Let’s keep our eyes open for new updates.

What users should know is, whether or not Prince could do this, it is clear from Instagram’s terms of use that Instagram itself could.  Why?  Because its users have given it permission.  Instagram does not claim ownership in user content.  However, users grant Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licenseable, worldwide license to use the content that you post on or through the Service.” Simply – they do not own the pictures, but they can act like they do. Instagram can do whatever it wants with user pictures, including enter into a deal with Prince, or anyone else for that matter, for use in an exhibit, or any other purpose. And users are entitled to nothing.  We do not know whether Prince and Instagram have such a deal, nor are we suggesting they do.  We are simply pointing out that such a deal would be completely permissible and defendable as a contract matter for Instagram to commercialize user pictures. Further, Instagram’s privacy policy, while providing some minor limitations on its use of “User Content,” makes it clear that when users post Content it becomes available to the public (subject to your privacy settings) and “that User Content may be re-shared by others.”  So, even if Instagram has arguably limited its own behavior, it is letting users know that user behavior may result in other users appropriating their content, at least to some degree.

This is not a judgment against Instagram. Instagram has clearly made its terms of use and privacy policy available to users. Users need to be aware of the possibility that Instagram, or the next version of Prince, may hijack their pictures.  As a user, you may have very little recourse. If you’re an Instagram user, and that is okay with you, no problem. If it is not, then act accordingly.  That’s the price of free social media.  You get what you pay for.

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