Arthur R. Lehman, L.L.C.

Federal Court in New York allows Instagram case to move forward

It seems like people in New York these days have a myriad of ways in which to capture their artwork. Gone are the days when paintings were made on blank canvases and photographs were taken with film and later developed. Digital photos these days can be taken with a smartphone and shared on a variety of platforms. However, this could lead to legal issues, as one recent case shows.

Recently, a federal judge in New York allowed a photographer's legal claim against artist Richard Prince to move forward. The photographer's claim arose over an image that the artist used as part of an exhibition. The case will determine how the doctrine of fair use applies to digital apps that allow users to share photographs, such as Instagram.

The case began in 2014 when the artist's artwork included printed versions of photographs found on Instagram on big canvases, with the artist's own comments underneath the images. One photographer, whose photo was used for a print from a different person's Instagram account, asked the court for a cease-and-desist order and, following that, filed a claim against the artist.

The artist, along with the gallery where the installation was presented and the owner of the gallery, requested that the case be thrown out. They said the artist's piece was transformative. However, according to the judge, the main image in the artist's piece was the photograph itself. The judge found that the artist did not change the photo in any material way. This claim is a follow-up to one brought against the artist by a different photographer. The United States Court of Appeals mostly ruled in favor of the artist in that case, but left the issue of fair use up in the air.

It remains to be seen what result this case will have on the fair use doctrine, but it does present an interesting fact of modern day life that there are many platforms, both physical and digital, for artists to share their works. New York residents who have questions about the fair use doctrine or who are dealing with an intellectual property dispute may want to make sure they have the most up-to-date information.

Source: The New York Times, "Copyright Case Over Richard Prince Instagram Show to Go Forward," Andrew R. Chow, July 20, 2017

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