Are your Instagram photos being sold by someone else?
Earlier today, I tweeted a link to an article that prompted me to ask this question. You
better already know that “private” or not, you should not post anything on your social media accounts that you would not want your current or potential employer to see.
Must you now worry about only posting something you would not mind displayed in a public space?
Well, an American painter slash photographer who according to his short bio on Wikipedia “began copying other photographer’s work in 1975,” has appropriated the Instagram posts of others. And displayed them in large sizes at a gallery.
It is difficult for me to pinpoint whether this artist, Richard Prince, is one of the least or most clever artists around.
Since last year, Prince has used photos from his follow feed for his own works. These works are simply large prints of his Instagram screenshots. With redacted phone timestamp and battery percentage, of course.
Prince’s derivative works are “changed” by him by the addition of a comment. No, not a comment on society. A comment written by his Instagram account, in the comment section of the original post’s comments. Prince is the last comment before taking his screenshot.
This “New Portraits” collection is available on his website (richardprince.com).
Modern art or modern theft?
As I previously posted, in Is making art using someone else’s IP legal?, there is a test to apply to check whether someone may legally use the intellectual property of another.
Commercial use of the new work is a consideration in the four factor fair use test. Last year, when Prince first (privately) debuted his Instagram exhibit, the pieces were not for sale.
This year one of his prints already sold during a VIP preview for $90,000 USD.
So, although you own the copyright to a photograph you have taken, someone else may re-photograph your picture and legally get away with it.
The Washington Post has an Instagram spokesman quoted saying:
People in the Instagram community own their photos, period. On the platform, if someone feels that their copyright has been violated, they can report it to us and we will take appropriate action. Off the platform, content owners can enforce their legal rights.
However, Prince has been making tons of money retaking pictures of popular photos for a few decades already. And yes, some people have taken him on legally. But no, those people did not succeed. Apparently his art has been deemed transformative enough.
Artsy.net, a website with a mission to make art accessible to anyone with an internet connection, has a page about Richard Prince and his works.