Before snapping that photo of your delicious and ornately plated vegan omelet, make sure you get the light right. Get the proper angle, make sure the omelet is in a good mood—don’t be lazy! Why? Well, because that picture may be worth up to $90,000. We’re as surprised as you are. But instead of letting the excitement of a potential five-figure pay out fill you with joy, give anger a try, because you wont see a dime of that money. Instead, renowned artist infamous infringer Richard Prince will pocket that 90 large after blowing up the photo and adding a couple of fake Instagram captions. Genius!

Click here for a great BGR story on the topic.

This sounds illegal and it very well may be. At the outset it looks like blatant copyright infringement. In the US, copyrights are automatically granted simultaneous with creation. So all that work you did to make sure your vegan omelet looked as digitally delectable as it did in on your plate, probably earns you some decent legal protection for your photo. If someone was to take it and say . . . sell it for $90,000, you’d have a nice little lawsuit to file.

But Prince is no stranger to lawsuits. In 2011 he was sued for very similar infringement, and in 2013, the Second Circuit found Prince’s work constituted “Fair Use,” expanding the affirmative defense beyond the limits most scholars thought it could reach. See Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013). In that case, Prince took photographs of Rastafarians from a book owned and copyrighted by Patrick Cariou, added some flair of his own (as seen below), and sold the artwork for millions.

While the Fair Use test is historically and infamously unpredictable, fact-intensive, and subject to a lot of judicial discretion, the seemingly minor changes Prince made to Cariou’s work changed the landscape of Fair Use, at least in the Second Circuit.

Now Prince has taken it further. Artists are supposed to push boundaries, but should they constantly be pushing legal boundaries? Should they build careers off of other people’s creative work? One can assume a new lawsuit will be filed against Prince, and his chance to win this time around appears to be worse.

For more information about how to protect your own creative work, feel free to contact us at: https://revisionlegal.com/#contact.

Transformative Use: The Core of the Fair Use Defense

The four-factor fair use test under 17 U.S.C. Section 107 requires courts to evaluate: (1) the purpose and character of the use, including whether the use is commercial or educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the potential market for the original. The first factor — particularly whether the use is “transformative” — has dominated fair use jurisprudence since Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), where the Supreme Court held that a work is transformative if it adds new expression, meaning, or message to the original.

In Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the Second Circuit held that 25 of Prince’s 30 works were transformative because they “have a different character, a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.” The court did not require Prince to comment on or criticize the original works — a significant expansion of transformative use doctrine that critics argued undermined the very purpose of the fair use defense.

The Supreme Court Narrows the Transformative Use Test

The broad transformative use doctrine from Cariou did not survive intact. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), the Supreme Court significantly narrowed the transformative use analysis. The Court held that Warhol’s orange silkscreen portrait of Prince, derived from a photograph by Lynn Goldsmith, was not a fair use when the Warhol Foundation licensed the image for commercial use in a magazine. Justice Sotomayor, writing for the majority, emphasized that the first fair use factor requires courts to examine the specific use at issue — the commercial licensing — not the original creation of the derivative work. Because both the Warhol Foundation’s licensing use and Goldsmith’s original photograph served the same commercial market (magazine illustrations of Prince), the use was not transformative.

This decision signals that artists who build careers on appropriating and re-selling others’ work in the same commercial market as the original can no longer rely on transformative use as a blanket defense. The more closely the derivative work competes with the original in the marketplace, the weaker the fair use argument.

What Copyright Owners Should Do When Their Work Is Appropriated

If you are a photographer, artist, or content creator whose work has been appropriated, the steps that maximize your legal options are straightforward. First, register your copyright with the U.S. Copyright Office if you have not already done so — registration before infringement, or within three months of first publication, preserves your right to statutory damages and attorney fees under 17 U.S.C. Sections 412 and 505. Second, document the infringing use thoroughly, including screenshots, URLs, exhibition records, and sale prices. Third, consult a copyright attorney before sending a demand letter; improper demand letters can create legal exposure under the DMCA’s Section 512(f) if your infringement claims later prove unfounded.

Platform Responsibility and DMCA Takedowns

Social media platforms that receive revenue from infringing activity and have the ability to control it may lose their Section 512 safe harbor protection. More practically, Instagram, Facebook, and other platforms have robust DMCA reporting mechanisms that result in rapid takedowns of infringing posts. Filing a DMCA takedown notice against accounts that display or distribute your work without authorization is often the fastest way to stop ongoing infringement — and it creates a documented record of your ownership claim that is valuable in subsequent litigation.

Contact Revision Legal’s Copyright Attorneys

When someone appropriates your creative work for commercial gain, you have options — but timing matters. Revision Legal’s copyright attorneys counsel photographers, visual artists, musicians, and content creators on registration strategy, DMCA enforcement, and infringement litigation. Contact us to discuss whether the fair use defense applies to your situation and what remedies are available to you.