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Can an 'Artist' Sell Your Instagram Photos?

We've all come to learn (I hope) that nothing we post on the Internet is private. But it's a far cry from "not private" to "available for an artist to enlarge, display, and sell for $90k."

That's what artist Richard Prince for a collection he calls "New Portraits," which consist of blown up photos from other people's Instagram accounts, reports StyleCaster. Prince made small alterations, displayed them at the Frieze Art Fair in New York, and sold them for $90,000 each. If you're wondering, like everyone else, how this is legal, let us explain.

The Process

One Instagrammer, Doe Deere, explained what happened, and her reaction, succinctly:

Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it! ?? #lifeisstrange #modernart #wannabuyaninstagrampicture

And she's right: Prince didn't bother altering any of the photos or usernames of the Instagrams he chose. But he did replace the captions with some of his own, own including one nonsensical addendum: "DVD workshops. Button down. I fit in one leg now. Will it work? Leap of faith."

The shots were then enlarged to 6-foot-tall inkjet prints, displayed, and sold.

The Law

Unfortunately, Doe Deere is probably right not to "go after" Prince, who has been "re-photographing" other works since the 1970s. Although this certainly sounds like a copyright violation, it falls under fair use law, which allows the use of copyrighted work, even without the copyright owner's permission.

One of the factors courts consider when applying fair use doctrine is whether the use is transformative, i.e., whether the new expression changed the original work, created new information, or led to new ideas. Prince has been sued before, and an appeals court found that he had altered the original photographer's work enough to make it transformative under the meaning of the law.

So it's likely the Instagrammers Prince targeted for this exhibit are equally out of luck when it comes to copyright infringement claims. Instagram also weighed in, saying that users were basically on their own for use outside of the app: "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."

Off the platform, maybe you have the loose change to buy your own Instagram photo.

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