6 ms·

Your Instagram photos aren’t really yours: Someone else can sell them for $90k

77 points by SimplyUseless 11y ago

Someone1234 11y ago
Copyright law is strange and inconsistent. Contrast this story with this one ("red bus case"[0]): http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-copyright-law-is-not.html http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-co... So at one end of the spectrum literally taking someone's photo and selling them without permission is NOT copyright infringement, and at the other end taking your own photo then altering it a certain way IS copyright infringement. Someone will have to explain that one to me... [0] https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_v_New_English_Teas_Ltd https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_...
- grabeh 11y ago
  Different legal systems have different approaches to the boundary between infringement and permissible usage of copyright works. UK law - copyright infringement is generally based on the concept of substantial reproduction of the original. On the basis of the similarity between the two, there was substantial reproduction. The main issue in the Red Bus case was over proof of copying of the specific work (on the basis that the work in question had been created by numerous photographers over the years (so how can you prove the specific work of the claimant was copied?)). US law - more flexible in the sense of avoiding infringement where the use of the work in a new light is sufficiently transformative. The linked article from the OP shows a good example in the combination of four separate shots to create a new work. The question would be whether the Instagram reproductions are sufficiently transformative. Perhaps the reproduction of one photo on its own is not sufficiently transformative. Another point of interest is that the person depicted in the photo may not be the owner of the copyright with a suitable cause of action (unless you're talking about selfies of course). I'm sure it would make for an interesting case!
pachydermic 11y ago
It doesn't really bother me that much that someone else could sell your Instagram photos. What bothers me is that someone else would buy them, when they're available for free on the internet.
- vijayr 11y ago
  For $90K, no less!
- wmeredith 11y ago
  I had the same thought. This story is about a transaction between charlatans and fools. It's a business that has a long and storied history. Anyone could hunt down an Instagram post that spoke to them and have a very high quality large print reproduction of it for a couple orders of magnitude less than $90k. Stuff like this is at the root of my whole beef with modern art. It's much more about being clever than talent or dedication or anything else. I could spend a lifetime trying to imitate Rembrandt and never get there. I could knock this Richard Prince stunt out before lunch if I started now (it's currently 10:13 AM CST here in Kansas City).
  - vinceguidry 11y ago
    I don't think it's quite accurate to call the participants charlatans / fools. The pieces are presented as clearly ripped off of Instagram, the last bit of the comment thread preserved along with one of the artist's. The people buying the prints know exactly what they are, it's difficult to maintain the position that they're getting ripped off. Art's a weird world. White canvases have sold for many millions: http://www.bloombergview.com/articles/2014-11-14/why-pay-15-million-for-a-white-canvas http://www.bloombergview.com/articles/2014-11-14/why-pay-15-... What you're actually buying when you purchase a piece of art is bound to be subjective, as the enjoyment of visual art is much more individual than, say, a video game. There are games that blur the lines of what makes up a game, and people still buy them, play them, and enjoy them. Also, there's plenty of ways to enjoy a game without ever playing it. When I was a kid, I would buy strategy guides for games I never played or owned. I'll watch people playing games that I would never play myself. If someone like John Romero or Sid Meier made something like a Pac-Man clone, I might buy it. So it's easy for me to see why someone would buy these Instagram shots. There's something about the curation and attention being given to them by the artist that makes it a more interesting experience to look at than if you just took a screenshot and saved it in a folder or printed it out. The artist isn't just producing visuals, he's also applying a more cultivated taste to 'what' he's producing. He's only got so much time to make things, what he chooses to make tells as much of a story as the skills he used to make it.
danso 11y ago
Well...yes...this headline manages to be both true but a little off-point. By posting your photos on Instagram, you have definitely given a third-party (Instagram) the right to make copies and distribute your photos...yet, the photo still belongs to you, Instagram is quick to point out [1]. But the reselling of photos as described here is not particular to Instagram. It involves an artist who reappropriates them for artistic purposes (similar to parody)...he could've done this with any photo or off of any service...so this concept isn't even particular to the Internet and the digital age. However, such examples as the OP are always good for discussion about "what is art?"...it's not so much the actual work (measured in sweat and hours) put into it, but the skill in repurposing it, and in the reputation of the artist...you have to build up quite the career of actually interesting work before you can get to the point where a rich tycoon will pay you $250K to splatter mud patterns on one of his walls. It'd be interesting to see a lawsuit come out of this...I'm guessing the artist could make a good case that the original photographers would never be able to raise $90K for their images...people only pay for it because it is work that he noticed/curated/altered. [1] http://blog.instagram.com/post/38252135408/thank-you-and-were-listening http://blog.instagram.com/post/38252135408/thank-you-and-wer...
- 0359B02149AB 11y ago
  To me, it's almost the same (but not quite exactly) as someone posting code on stack overflow, and developers using and relying on that code for their job. The idea of what part of information is owned and what is shared is a concept that fascinates and bewilders me consistently. Art has all these emotional attachments to it, this personal affect, and not many stop to think that for some people, code - even mathematics, is exactly the same. Why is there a difference between someone who posts a solution on the internet, versus someone who teaches a course and publishes a book, versus someone who traces a drawing using a projector for art? Public and cultural education, myth, and superstition, mostly. But in quantity and quality - these determine the success or failure of any venture business; even the start of a lifelong friendship. How do people come to the thoughts they conclude with? How do people get ideas? I guarantee you, if you lock yourself up in a little room and wall yourself off from society, you will either arrive at some derivative of absolute truth or you will go insane, possibly both. If I post this comment, and then other people have ideas that are profitable as a result of my comment, does it matter how similar their idea to my comment appears? Do I own those ideas that result from my comment? I would say no, because that's absurd, but yet, we live in a world that has opinions that cover the entire spectrum of this dialogue, and then some.
brokentone 11y ago
Now what if @doedeere sold her own 6 foot tall prints of the same image that fetched $90K? Would Richard Prince then sue her?
- nedwin 11y ago
  I highly doubt it.
Torgo 11y ago
Since he's not getting model releases he might still be breaking privacy law.
gcb0 11y ago
so if i publish a copyrighted material in my Instagram, an i or the publisher responsible? ... since they are the ones with the prospect of profit...
- nedwin 11y ago
  This would fall under the DMCA. So long as the publisher took down the material when notified it was an infringement, following their DMCA procedures.
  - krallja 11y ago
    More info: the specific DMCA provision that allows for this is called "Safe Harbor."
  - gcb0 11y ago
    but my point is, what if instagram sold a pint before they got the DMCA?
Dirlewanger 11y ago
So a couple different things here: On one hand, it's funny that user "doedeere" thinks she had to give permission to the artist in order to use her picture in art. Gives off an air of entitlement if you ask me. On the other, I think it's a fair example of how little the average user is aware (read: doesn't give any attention to at all) of a free service's TOS and what is/isn't allowed, in addition the actual nature of posting stuff on the Internet. Need to educate yourselves, people (obviously not anyone browsing HN, but you know what I mean). The fact that these pieces are selling for that much? Well, I'd say the suckers are the ones buying them. Maybe in 60 or so years they'll be considered something? Maybe not? Art's in the eye of the beholder, as it should be. If people want to wast...I mean spend that much on an enlarged screenshot, let them.
- patorjk 11y ago
  This doesn't have anything to do with Instagram's TOS though. The artist is banking on his screenshots being considered "transformative". However, what this means is kind of grey. Does adding a comment under a picture add new value [1] to that picture? There have been cases brought where the art in question had much more transformation applied to it (examples: Harry Potter encyclopedia, Obama Hope Image). [1] http://fairuse.stanford.edu/overview/fair-use/four-factors/#the_transformative_factor_the_purpose_and_character_of_your_use http://fairuse.stanford.edu/overview/fair-use/four-factors/#...
- yincrash 11y ago
  This has nothing to do with Instagram's TOS. This is an argument about whether or not this falls under the US's Fair Use doctrine to determine whether or not the instagram user can assert copyright over the images being used by Prince.
mullingitover 11y ago
I find it fascinating that trivial modifications of photos qualify as 'transformative' and thus evade copyright. So it's okay for me to download the new Taylor Swift single, add some extra reverb, and start selling copies of it? Cool.
- wmil 11y ago
  Many things in civil law come down to who can afford to spend more on lawyers. Richard Prince probably has a brother or a fan who's a copyright lawyer willing to work pro-bono.
  - marincounty 11y ago
    I think it does come down to money too--like everything? I think if Richard Prince downloaded an image of Mickey Mouse, and did his "artistic" magic to the image, and sold prints in a gallery; his Lawyer would be very busy? I, personally, don't give websites very many pictures. The few pictures I post are images I am giving away. Companies, Artists, and webscrapers are free to do whatever they want with the pictures I give up. I don't give companies like Instagram any images--period. Facebook gets a picture of the back of my head, and I still use a pseudonym. Even in high school, and college I never sat for a school picture. I don't like people taking my picture without my permission. I don't like companies whom take, and keep my picture--even for security, and identify purposes. I don't like public cams. I don't like marketing trend of taking employees picture for marketing purposes(Whole Foods, etc), or even employee of the month pictures. What I am trying to say is I wish people were more concerned about their Images? I'll admit my my concern over the protection of my image, and the images I take borders on an obsession. I sometimes wonder if I'm missing out on opportunities in life by being so private? I know companies will start running campaigns, and marketing ploys if Not posting becomes a trend. I can see it now, "Don't miss out on life--post more images!" "Don't miss out on networking opportunities--post more images!" "Don't miss out on love--post more images!" People here know once image is posted it can be copied, manipulated, used without your consent, and sent around the world. The people I am close to don't quite realize once they upload in image it's essentially not their's anymore in any practical sense.
- 11y ago
nitrogen 11y ago
This seems like another example of a blatantly distorted copyright law protecting one class of creator while completely shafting the commoners.
ChrisArchitect 11y ago
baffling and understandably shocks ppl....but all that aside, wondering what kind of quality could the prints be really ? Res of instagram photos isn't that high right? even thru the API?
wiredfool 11y ago
The buyers aren't spending 90k for a print of an Instagram, they're spending 90k for Richard Prince's signature on the bottom. Richard Prince could appropriate anything at this point, make a very limited edition, sign it, and mint money. You couldn't, I couldn't, but he can.
- brador 11y ago
  Under your theory, assuming I was famous, could I make a copy of a movie, sign the DVD copy and sell it for $100 free and clear? I don't think I'd get away with that, so why should he?
  - wrongc0ntinent 11y ago
    There's an important extension that isn't clearly visible, which is the commodity aspect. When there's an established market for an artist, the financial success (see headline) is a necessary signal that the artist's market is healthy. Everything else is more or less secondary, both to the market and to the artist as product and manufacturer. In other words, a lost/settled/won lawsuit is not a liability for him.
  - krisgenre 11y ago
    What if I bought the DVD, got it signed by you and sold it for $100? Replace DVD with guitars, T-Shirts etc, definitely seen that happening.
    - brador 11y ago
      With the items there's no copyright. With the DVD there is. The studio owns the copyright to the "image" on the DVD that was copied. I guess the big question is does what he has done to the images count as derivative works or not? I say not, since he's used the image unmodified. I hope at $90k a sale it catches the attention of a pro bono for a nice test case. Would be interesting to see what the courts say.
      - asadlionpk 11y ago
rplst8 11y ago
This just continues to prove that copyright law in the US is tailored to serve one group of people - those who already have a stake in the game.
normloman 11y ago
Add a comment to someone else's Instagram photo: not copyright infringement. Make 90K. Sample one measure of a well known song in a hip hop tune: totally copyright infringement. Get sued for 90k.
glenda 11y ago
The headline is a bit like saying "Painters sells dried paint for 90k" or "Programmer sells series of characters for 90k" Technically it's accurate, but it misses the point entirely. Richard Prince, whether you like him or not, is an artist and his medium is typically found/appropriated objects. We, as a society, have rewarded him in the past because there is something interesting in what he does. Oftentimes artists are misunderstood within their lifetimes and the scope of their interests become more apparent with time. So for now, these are super gimmicky and somewhat frustrating, but as the world changes in unexpected ways they will only take on more meaning .

77 points by SimplyUseless 11y ago

Copyright law is strange and inconsistent. Contrast this story with this one ("red bus case"[0]): http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-copyright-law-is-not.html http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-co... So at one end of the spectrum literally taking someone's photo and selling them without permission is NOT copyright infringement, and at the other end taking your own photo then altering it a certain way IS copyright infringement. Someone will have to explain that one to me... [0] https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_v_New_English_Teas_Ltd https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_...

grabeh 11y ago
Different legal systems have different approaches to the boundary between infringement and permissible usage of copyright works. UK law - copyright infringement is generally based on the concept of substantial reproduction of the original. On the basis of the similarity between the two, there was substantial reproduction. The main issue in the Red Bus case was over proof of copying of the specific work (on the basis that the work in question had been created by numerous photographers over the years (so how can you prove the specific work of the claimant was copied?)). US law - more flexible in the sense of avoiding infringement where the use of the work in a new light is sufficiently transformative. The linked article from the OP shows a good example in the combination of four separate shots to create a new work. The question would be whether the Instagram reproductions are sufficiently transformative. Perhaps the reproduction of one photo on its own is not sufficiently transformative. Another point of interest is that the person depicted in the photo may not be the owner of the copyright with a suitable cause of action (unless you're talking about selfies of course). I'm sure it would make for an interesting case!

pachydermic 11y ago

It doesn't really bother me that much that someone else could sell your Instagram photos. What bothers me is that someone else would buy them, when they're available for free on the internet.

vijayr 11y ago
For $90K, no less!
wmeredith 11y ago
I had the same thought. This story is about a transaction between charlatans and fools. It's a business that has a long and storied history. Anyone could hunt down an Instagram post that spoke to them and have a very high quality large print reproduction of it for a couple orders of magnitude less than $90k. Stuff like this is at the root of my whole beef with modern art. It's much more about being clever than talent or dedication or anything else. I could spend a lifetime trying to imitate Rembrandt and never get there. I could knock this Richard Prince stunt out before lunch if I started now (it's currently 10:13 AM CST here in Kansas City).
- vinceguidry 11y ago
  I don't think it's quite accurate to call the participants charlatans / fools. The pieces are presented as clearly ripped off of Instagram, the last bit of the comment thread preserved along with one of the artist's. The people buying the prints know exactly what they are, it's difficult to maintain the position that they're getting ripped off. Art's a weird world. White canvases have sold for many millions: http://www.bloombergview.com/articles/2014-11-14/why-pay-15-million-for-a-white-canvas http://www.bloombergview.com/articles/2014-11-14/why-pay-15-... What you're actually buying when you purchase a piece of art is bound to be subjective, as the enjoyment of visual art is much more individual than, say, a video game. There are games that blur the lines of what makes up a game, and people still buy them, play them, and enjoy them. Also, there's plenty of ways to enjoy a game without ever playing it. When I was a kid, I would buy strategy guides for games I never played or owned. I'll watch people playing games that I would never play myself. If someone like John Romero or Sid Meier made something like a Pac-Man clone, I might buy it. So it's easy for me to see why someone would buy these Instagram shots. There's something about the curation and attention being given to them by the artist that makes it a more interesting experience to look at than if you just took a screenshot and saved it in a folder or printed it out. The artist isn't just producing visuals, he's also applying a more cultivated taste to 'what' he's producing. He's only got so much time to make things, what he chooses to make tells as much of a story as the skills he used to make it.

danso 11y ago

Well...yes...this headline manages to be both true but a little off-point. By posting your photos on Instagram, you have definitely given a third-party (Instagram) the right to make copies and distribute your photos...yet, the photo still belongs to you, Instagram is quick to point out [1]. But the reselling of photos as described here is not particular to Instagram. It involves an artist who reappropriates them for artistic purposes (similar to parody)...he could've done this with any photo or off of any service...so this concept isn't even particular to the Internet and the digital age. However, such examples as the OP are always good for discussion about "what is art?"...it's not so much the actual work (measured in sweat and hours) put into it, but the skill in repurposing it, and in the reputation of the artist...you have to build up quite the career of actually interesting work before you can get to the point where a rich tycoon will pay you $250K to splatter mud patterns on one of his walls. It'd be interesting to see a lawsuit come out of this...I'm guessing the artist could make a good case that the original photographers would never be able to raise $90K for their images...people only pay for it because it is work that he noticed/curated/altered. [1] http://blog.instagram.com/post/38252135408/thank-you-and-were-listening http://blog.instagram.com/post/38252135408/thank-you-and-wer...

0359B02149AB 11y ago
To me, it's almost the same (but not quite exactly) as someone posting code on stack overflow, and developers using and relying on that code for their job. The idea of what part of information is owned and what is shared is a concept that fascinates and bewilders me consistently. Art has all these emotional attachments to it, this personal affect, and not many stop to think that for some people, code - even mathematics, is exactly the same. Why is there a difference between someone who posts a solution on the internet, versus someone who teaches a course and publishes a book, versus someone who traces a drawing using a projector for art? Public and cultural education, myth, and superstition, mostly. But in quantity and quality - these determine the success or failure of any venture business; even the start of a lifelong friendship. How do people come to the thoughts they conclude with? How do people get ideas? I guarantee you, if you lock yourself up in a little room and wall yourself off from society, you will either arrive at some derivative of absolute truth or you will go insane, possibly both. If I post this comment, and then other people have ideas that are profitable as a result of my comment, does it matter how similar their idea to my comment appears? Do I own those ideas that result from my comment? I would say no, because that's absurd, but yet, we live in a world that has opinions that cover the entire spectrum of this dialogue, and then some.

brokentone 11y ago

Now what if @doedeere sold her own 6 foot tall prints of the same image that fetched $90K? Would Richard Prince then sue her?

nedwin 11y ago
I highly doubt it.

Torgo 11y ago

Since he's not getting model releases he might still be breaking privacy law.

gcb0 11y ago

so if i publish a copyrighted material in my Instagram, an i or the publisher responsible? ... since they are the ones with the prospect of profit...

nedwin 11y ago
This would fall under the DMCA. So long as the publisher took down the material when notified it was an infringement, following their DMCA procedures.
- krallja 11y ago
  More info: the specific DMCA provision that allows for this is called "Safe Harbor."
- gcb0 11y ago
  but my point is, what if instagram sold a pint before they got the DMCA?

Dirlewanger 11y ago

So a couple different things here: On one hand, it's funny that user "doedeere" thinks she had to give permission to the artist in order to use her picture in art. Gives off an air of entitlement if you ask me. On the other, I think it's a fair example of how little the average user is aware (read: doesn't give any attention to at all) of a free service's TOS and what is/isn't allowed, in addition the actual nature of posting stuff on the Internet. Need to educate yourselves, people (obviously not anyone browsing HN, but you know what I mean). The fact that these pieces are selling for that much? Well, I'd say the suckers are the ones buying them. Maybe in 60 or so years they'll be considered something? Maybe not? Art's in the eye of the beholder, as it should be. If people want to wast...I mean spend that much on an enlarged screenshot, let them.

patorjk 11y ago
This doesn't have anything to do with Instagram's TOS though. The artist is banking on his screenshots being considered "transformative". However, what this means is kind of grey. Does adding a comment under a picture add new value [1] to that picture? There have been cases brought where the art in question had much more transformation applied to it (examples: Harry Potter encyclopedia, Obama Hope Image). [1] http://fairuse.stanford.edu/overview/fair-use/four-factors/#the_transformative_factor_the_purpose_and_character_of_your_use http://fairuse.stanford.edu/overview/fair-use/four-factors/#...
yincrash 11y ago
This has nothing to do with Instagram's TOS. This is an argument about whether or not this falls under the US's Fair Use doctrine to determine whether or not the instagram user can assert copyright over the images being used by Prince.

mullingitover 11y ago

I find it fascinating that trivial modifications of photos qualify as 'transformative' and thus evade copyright. So it's okay for me to download the new Taylor Swift single, add some extra reverb, and start selling copies of it? Cool.

wmil 11y ago
Many things in civil law come down to who can afford to spend more on lawyers. Richard Prince probably has a brother or a fan who's a copyright lawyer willing to work pro-bono.
- marincounty 11y ago
  I think it does come down to money too--like everything? I think if Richard Prince downloaded an image of Mickey Mouse, and did his "artistic" magic to the image, and sold prints in a gallery; his Lawyer would be very busy? I, personally, don't give websites very many pictures. The few pictures I post are images I am giving away. Companies, Artists, and webscrapers are free to do whatever they want with the pictures I give up. I don't give companies like Instagram any images--period. Facebook gets a picture of the back of my head, and I still use a pseudonym. Even in high school, and college I never sat for a school picture. I don't like people taking my picture without my permission. I don't like companies whom take, and keep my picture--even for security, and identify purposes. I don't like public cams. I don't like marketing trend of taking employees picture for marketing purposes(Whole Foods, etc), or even employee of the month pictures. What I am trying to say is I wish people were more concerned about their Images? I'll admit my my concern over the protection of my image, and the images I take borders on an obsession. I sometimes wonder if I'm missing out on opportunities in life by being so private? I know companies will start running campaigns, and marketing ploys if Not posting becomes a trend. I can see it now, "Don't miss out on life--post more images!" "Don't miss out on networking opportunities--post more images!" "Don't miss out on love--post more images!" People here know once image is posted it can be copied, manipulated, used without your consent, and sent around the world. The people I am close to don't quite realize once they upload in image it's essentially not their's anymore in any practical sense.
11y ago

nitrogen 11y ago

This seems like another example of a blatantly distorted copyright law protecting one class of creator while completely shafting the commoners.

ChrisArchitect 11y ago

baffling and understandably shocks ppl....but all that aside, wondering what kind of quality could the prints be really ? Res of instagram photos isn't that high right? even thru the API?

wiredfool 11y ago

The buyers aren't spending 90k for a print of an Instagram, they're spending 90k for Richard Prince's signature on the bottom. Richard Prince could appropriate anything at this point, make a very limited edition, sign it, and mint money. You couldn't, I couldn't, but he can.

brador 11y ago
Under your theory, assuming I was famous, could I make a copy of a movie, sign the DVD copy and sell it for $100 free and clear? I don't think I'd get away with that, so why should he?
- wrongc0ntinent 11y ago
  There's an important extension that isn't clearly visible, which is the commodity aspect. When there's an established market for an artist, the financial success (see headline) is a necessary signal that the artist's market is healthy. Everything else is more or less secondary, both to the market and to the artist as product and manufacturer. In other words, a lost/settled/won lawsuit is not a liability for him.
- krisgenre 11y ago
  What if I bought the DVD, got it signed by you and sold it for $100? Replace DVD with guitars, T-Shirts etc, definitely seen that happening.
  - brador 11y ago
    With the items there's no copyright. With the DVD there is. The studio owns the copyright to the "image" on the DVD that was copied. I guess the big question is does what he has done to the images count as derivative works or not? I say not, since he's used the image unmodified. I hope at $90k a sale it catches the attention of a pro bono for a nice test case. Would be interesting to see what the courts say.
    - asadlionpk 11y ago

rplst8 11y ago

This just continues to prove that copyright law in the US is tailored to serve one group of people - those who already have a stake in the game.

normloman 11y ago

Add a comment to someone else's Instagram photo: not copyright infringement. Make 90K. Sample one measure of a well known song in a hip hop tune: totally copyright infringement. Get sued for 90k.

glenda 11y ago

The headline is a bit like saying "Painters sells dried paint for 90k" or "Programmer sells series of characters for 90k" Technically it's accurate, but it misses the point entirely. Richard Prince, whether you like him or not, is an artist and his medium is typically found/appropriated objects. We, as a society, have rewarded him in the past because there is something interesting in what he does. Oftentimes artists are misunderstood within their lifetimes and the scope of their interests become more apparent with time. So for now, these are super gimmicky and somewhat frustrating, but as the world changes in unexpected ways they will only take on more meaning .