Richard Prince, the controversial appropriation artist, has once again found himself in the crosshairs of the copyright law.  On December 30, 2015, Donald Graham filed a copyright infringement suit against Prince in connection with his 2014 “New Portraits” exhibition, in which he took screen shots of portraits (of strangers) on Instagram, ink-jet printed them on six-foot canvases, and displayed and sold them, in some cases for up to $100,000.

Prince is not new to claims of copyright infringement. In 2011, Prince was sued by Patrick Cariou for appropriating works from Cariou’s book “Yes Rasta,” without permission, into his “Canal Zone” series.  In that case, he took photos from Cariou’s book, made changes to them, and incorporated them into larger collages and paintings.

In Cariou v. Prince, the Second Circuit found, on summary judgment, that twenty-five out of thirty artworks created by Prince were fair uses of Cariou’s photographs.  The Court remanded a decision on the other five works back to the district court to determine if enough changes had been made to deem those five works transformative.  Ultimately, the case was settled before a decision was made.

The changes made to the photos in the “New Portraits” exhibition are even more minimal than the changes that were made in any of the works in the Cariou case, including the five that were remanded.

Arguably, the biggest modifications to the images in “New Portraits” are some cropping (which was likely already done on Instagram and not by Prince) and the bizarre, esoteric, sometimes lewd comments made by Prince beneath the pictures.

Given the minimal nature of the changes made to the works in the “New Portraits” series, it would be easy to assume that Prince would have a much harder time making a fair use claim in this case.  Add to that the fact that, unlike in the Cariou case, where Cariou only used the images as part of a book which sold very few copies, Graham’s works have hung in prestigious art galleries, such as the Metropolitan Museum of Art and the International Center of Photography in New York and are offered in the same market.  So, Prince would not be able to rely on the fact that the works are sold in different markets to different consumers to bolster any fair use claim.

However, the Second Circuit’s holding in Cariou represented a real watershed moment in fair use analysis.  Since the Court’s holding in Cariou, courts have been more and more willing to find fair use in situations even where works are being reproduced wholesale, without any alteration. As long as the purpose or nature of the use is considered to be different than that of the original courts have found the works to be “transformative.”  As recently as September 2015, the Eleventh Circuit found fair use in Katz v. Google, where a photo was reproduced, without any alteration, to illustrate a blog post about the subject of the photograph.  The Court held that because, in the context of the blog post’s surrounding commentary, the photo was used to portray the subject’s purportedly “ugly” and “compromising” appearance  and ridicule and satirize his character, it was sufficiently transformative to be a fair use.

In this case, Prince might claim that he has transformed the original photographs by using them to comment on the nature of digital works and how copyright and on-line privacy intertwine and on the changing nature of how we present ourselves to society in this new digital environment.

Where it seems clear that, under a Pre-Cariou standard, the images in “New Portraits” would not have been considered a fair use, it will be interesting to see how the court treats these works in a Post-Cariou world.