News

Photographer Sends Cease and Desist Letters to Richard Prince and Gagosian

by Hrag Vartanian on February 15, 2015

Donald Graham's original image and Richard Prince's artwork featuring the image on Instagram. (images courtesy Donald Graham)

Donald Graham’s original image and Richard Prince’s artwork featuring the image on Instagram. (images courtesy Donald Graham)

Richard Prince’s New Portraits exhibition closed last October, but the saga of his appropriated images, all taken with little alteration from the Instagram social media service, is having new legal repercussions. Hyperallergic has learned that a lawyer representing photographer Donald Graham has mailed cease and desist letters to Prince and the Gagosian Gallery over the unauthorized use of his photograph titled “Rastafarian Smoking a Joint, Jamaica.” The letters, which Hyperallergic was not able to obtain, reputedly ask Gagosian and Prince to stop exhibiting and/or distributing the Prince work and any other materials containing unauthorized reproductions of Graham’s work

The image used by Prince was culled from the social media account of Jay Kirton, aka @rastajay92, who uploaded Graham’s image on May 5, 2014. The comment by Richard Prince that appears on the artwork exhibited at Gagosian — “Canal Zinian da lam jam” — is no longer posted on the Instagram post, while another, emoji-filled comment by @bigl14 appears. The Prince artwork features 128 “likes,” while the original post now has 150. While the copyright for the image resides with the artist, we reached out to Kirton to ask why he uploaded the image without accreditation. He has not responded to our request for comment.

Real Bongo Nyah man a real Congo Nyah ✊ repost @indigoochild

A photo posted by Jay Kirton A.K.A Ka Assante (@rastajay92) on

The image used by Prince is not the first photograph of a Rastafarian to land the appropriation artist in legal trouble. Photographer Patrick Cariou sued Prince for the unauthorized use of images from his Yes Rasta series, which focused on portraits of Rastafarians. While Cariou scored an initial legal victory, the ruling was later reversed and settled out of court.

It’s worth noting that in his original press release for the New Portraits exhibition, Prince had this to say about his use of Rastafarians in the Canal Zone series:

I don’t want to talk about where the Rastas came from.
Like most images I work with they weren’t mine. I didn’t know anything about Rastas. I didn’t know anything about their culture or how they lived. I had plenty of time to find out. What I went with was the attraction. I liked their dreads. The way they were dressed … gym shorts and flip-flops. Their look and lifestyle gave off a vibe of freedom. Maybe I’m wrong about the freedom but I don’t give a shit about being wrong.

After the New Portraits exhibition opened, a new press release was sent out that contained a single statement:

All images are subject to copyright. Gallery approval must be granted prior to reproduction.

When Hyperallergic reached out to Gagosian Gallery for permission to use images for an October 8, 2014 review they did not respond to our requests.

In an Instagram post four months ago, Graham uploaded an image of the Prince exhibition with the following caption: “Appropriated Exhibit. The only way you’d know my work was a part of this display is…well, that’s just it, you wouldn’t know. #PrinceofAppropriation.”

In another post the photographer, clearly angry at the Gagosian artist, uploaded his Rastafarian image with the words: “How to credit a work: ‘Rastafarian Smoking a Joint’ © 1997 Donald Graham.#PrinceofAppropriation.”

Graham is an internationally acclaimed photographer who has worked both in the commercial and fine art fields. His photographs appear in the collections of the Metropolitan Museum of Art and the International Center of Photography. “Rastafarian Smoking a Joint, Jamaica” is in the collection of well-known photography collector Henry Buhl of the Buhl Foundation.

Graham, speaking through his attorney, Sergio Muñoz Sarmiento — who is an artist, blogger (including for this publication), and well-known commentator on copyright issues in the art world — stated:

It is sacrosanct and a fundamental part of the core fabric of American society and culture that every individual’s original work and livelihood is entitled to be protected from the unauthorized use and appropriation by corporations or individuals. This principle, embodied in the copyright law, is something that is profoundly meaningful to me and more importantly, is absolutely critical and necessary for the artistic community to which I am honored to belong. It is a principle that I, along with many others, intend to lend my voice, integrity and passion to strongly upholding.

Gagosian Gallery has not responded to our request for comment on this matter.

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Hyperallergic welcomes comments and a lively discussion, but comments are moderated after being posted. For more details please read our comment policy.
  • Freddie Quell

    What makes Prince an artist? He exhibits work, but exhibits no creativity. A crucial quality of appropriation (be it collage, found footage, impersonation) is that it can be subversive, can evoke a critical response to received knowledge through an insincere pantomime. Prince has merely found the most expensive method of reblogging. The quoted press release for New Portraits says it all: “I don’t give a shit.” Neither do we, Dick. This work is not culturally valuable; it will be a footnote in copyright law.

    • Sarah Portland

      Truthfully, I have to wonder if he’s trolling us all. Every time he does something like this and he ends up before a judge, he just shrugs and says something to the effect of, “I took it because I wanted it, and because I could.” he knows the rules of appropriation as well as the rest of us, yet he snubs the all. I think it’s intentional.

      • Demetra Materis

        Eventually he won’t have any place to exhibit if he is known for plagiarism.

      • Den Hickey

        He knows the rules of cultural appropriation (according to white people). “I wanted it, so I took it because I could. Now I’m going to go make money off of it without understanding it at all.”

  • Unhygienix

    #royaldick

  • pomodu

    Picasso’s African masks, Lichtenstein’s comics, Warhol’s soup cans, Brillo boxes, car crash photos etc., Sherrie Lavine’s “After Walker Evans” series, Douglas Gordon’s 24 hour Psycho, Jeff Koons, Duchamp, … Pretty much every single blues song ever written. 1/2 of Disney’s animations lifted form folk tales. Do you know how many “Last Suppers” were painted? Or Pietas? The history of culture is a history of cannibalism. Its how it perpetuates itself forward. I’ve no problem with Prince at all. New context, new work.

    • Clarniluan

      Yes – but all of the above transformed their appropriated images significantly or, if they didn’t, as in Sherrie Levine, there was acknowledgment – “After Walker Evans” – etc. Picasso didn’t take African masks and hang them on a wall with his name attached to them. Richard Prince is doing non of the above. He’s just wholesale reproducing and profiting from another artist’s work. That he can even exhibit this stuff is mind-blowing – if ever there was a case of the Emperor being naked, this is it.

    • RuthLeider

      “Picasso’s African masks, Lichtenstein’s comics, Warhol’s soup cans, Brillo boxes, car crash photos etc., Sherrie Lavine’s “After Walker Evans” series, Douglas Gordon’s 24 hour Psycho, Jeff Koons, Duchamp, … Pretty much every single blues song ever written. 1/2 of Disney’s animations lifted form folk tales. Do you know how many “Last Suppers” were painted? Or Pietas? The history of culture is a history of cannibalism. Its how it perpetuates itself forward. I’ve no problem with Prince at all. New context, new work.”

      Thanks for that pretentious bird’s eye nonsense view of culture. Let me repost it because that counts as meaningful in its own empty terms.

      “Picasso’s African masks, Lichtenstein’s comics, Warhol’s soup cans, Brillo boxes, car crash photos etc., Sherrie Lavine’s “After Walker Evans” series, Douglas Gordon’s 24 hour Psycho, Jeff Koons, Duchamp, … Pretty much every single blues song ever written. 1/2 of Disney’s animations lifted form folk tales. Do you know how many “Last Suppers” were painted? Or Pietas? The history of culture is a history of cannibalism. Its how it perpetuates itself forward. I’ve no problem with Prince at all. New context, new work.”

    • Den Hickey

      Except, of course, Prince’s work isn’t moving culture or art forward at all. Its too vapid for that.

  • http://chuckchoi.com Chuck Choi

    A couple of comments about your article:

    “we reached out to Kirton to ask why he uploaded the image without accreditation.”

    The implication here is that he needed to state copyright in order to be
    protected, which is not true. The work is implicitly copyrighted as of
    the 1976 Copyright Act. This is a common misperception.

    “When Hyperallergic reached out to Gagosian Gallery for permission to
    use images for an October 8, 2014 review they did not respond to our
    requests.”

    You don’t need their permission. Writing a news article about these
    images is considered “Fair Use”, thus you would be able to use the
    images regardless of what Gagosian thinks.

    What Prince is doing is testing the boundaries of the Fair Use
    doctrine. Under certain circumstances intellectual and artistic
    property can lawfully be appropriated. Take for example, “Dejeuner sur
    l’erbe”. That theme and composition had been reinterpreted since
    antiquity. Without the possibility for artists to transform prior
    works, the world would never have seen Manet’s version. However, to be
    lawful, a work has to be “trans formative”, meaning it has to have
    another meaning than the original and cannot be a close copy.
    Personally, I fail to see how Prince’s new work is adequately trans
    formative.

    If it is Richard Prince’s intent to make us consider what constitutes a
    work of art, that would be far and away more interesting than his
    artwork by itself.

    • http://hragv.com/ Hrag Vartanian

      I know the accreditation doesn’t impact the copyright, but I was curious to hear his reply, which I still haven’t received.

      In terms of Gagosian, you’re being naive. The gallery has demanded we remove images in the past and “fair use” is something you have to prove in court. If the very wealthy gallery take you to court it would cost a lot of money to justify. Our lawyers know the law. I assume you have little experience with fair use in the courts.

      I think people read into Prince’s work what they want. It sounds like it is your wish that this is the “content.”

      • http://chuckchoi.com Chuck Choi

        You are a news organization, so the law is clearly on your side. But, I guess you should follow the advice of your attorneys.

        My attorney is Joel Hecker, if you want to consult with an intellectual property lawyer.

        • RuthLeider

          “You are a news organization, so the law is clearly on your side.”

          How is this clear?

        • http://hragv.com/ Hrag Vartanian

          Our attorneys are intellectual property specialists. This isn’t an issue of being right or wrong, as I said, but the possible costs involved. Cases like this are very expensive.

  • funnyfacestudio

    In all of these discussions, nothing is said of the subjects themselves. Were these Rastas paid for the use of their images?

    • RuthLeider

      What makes you think they’d want to get paid?

      • annie paul

        And why wouldn’t they? They have to live and work in Babylon system too. Money would have been fair exchange if money is being made by exhibiting their images.

        • RuthLeider

          I would imagine that if these folks were taking up a model contract with the photographer they would have been paid, given the nature of the agreement. Otherwise, and most likely, they are just folks willing to be a part of a photographer’s portrait series. Lots of people like participating in artists’ work. I mean, just look at the stuff.

          http://donaldgraham.com/PORTRAITS/5/caption-thumbs/

          Do these people look like professional models interested in making money?

          • annie paul

            Actually most Jamaicans object to having their photograph taken, especially for publication and possible profit-making. This is one place you can’t walk around on the street taking photos of people without their permission without paying whatever is demanded. It’s not like India where people beg to have their photos taken or willingly participate. I live and work in Kingston, love street photography and am talking from experience.

          • RuthLeider

            Well, this guy is a Jamaican participating in a portrait series with lots of other people, such as the cowboy, the biker, or the Jew in a kippah. Your comment struck me as patronizing, like this guy is in some cultural zoo being exploited.

          • annie paul

            Really? cultural zoo? didn’t look any further than this photo…and I’m aware of the Cariou series. even if he was paid a small sum by the original photographer it still doesn’t exonerate the thousands that Prince makes on the image, on this man’s image. Nothing patronizing about arguing this subject’s case. But you sound like you were part of the production of it so Gweh! as they would say here in Jamaica.

          • RuthLeider

            These photographs were not made by Patrick Cariou nor part of any works related to him.

          • annie paul

            Yes we can read Ruth. This photo was taken by Donald Graham not Cariou. The issues raised by Prince’s appropriation of Graham’s photograph are v similar to those raised by his appropriation of Cariou’s. That’s why i mentioned him. And the subjects are very similar too. That is all. And the transformation is negligible. So what is the value added by Prince that enables him to get paid so much?

          • RuthLeider

            funnyfacestudio’s comment was about the photographer who took the portrait of the Jamaicans. It was not about Prince other than believing there is some chain of exploitation here that needs to be examined. But there is no reason to think the Jamaicans involved in the series are being exploited. If Graham pays his subjects, I’d imagine he pays them all, including the Jamaicans.

          • Stefano Giovannini

            I have been to Jamaica, and I had no issues taking photos of people. They were happy and also wanted to exchange numbers. A rasta cooked some coconut dessert somewhere I was looking for shelter from the storm. Anyhow, Gagosian seems despicable, but hopefully Graham gave back to the community. some pix of Jamaica here http://stefanogiovannini.com/travel-tropical

          • annie paul

            Well Stefano, that could be because you were in a tourist zone…of course ppl there are only too willing to do whatever tourists want but try that in Kingston and you might have a different experience…

          • Stefano Giovannini

            I actually went away from the tourist zone as there was too much hustling. I rented a bicycle, and i rode on the way to Sav La Mar to Brighton beach and people were really nice. I took a route taxi to Lucea, and I enjoyed that too.

          • annie paul

            gr8, that’s good to know Stefano…I find Jamaicans very welcoming and friendly but have had problems taking street photos. Others have noted this too, so its not just me. you’re expected to ask for permission and if this isn’t done gr8 offence can be taken.

          • http://hragv.com/ Hrag Vartanian

            Let’s not generalize. Patrick Cariou talked about the difficulty photographing women in Rastafarian communities outside the urban centers. Every community, I’m sure, is different.

          • annie paul

            Not generalizing. Recounting my experience and that of others. Its quite striking how aggressively ppl here will object to having a camera pointed at them.

          • Stefano Giovannini

            I remember a humble looking rasta lady selling produce at the local market. A Jamaican customer bought some vegetables from her, but the tone she was using sounded condescending and rude. She called “hey rasta”, no pleases/thankyous. I took some photos of her, she wrote her name on my notepad. I might have bought some mangos from her first http://stefpix.tumblr.com/post/70324140385/jamaica-2010-a-long-bike-ride-south-of-negril-on

          • Stefano Giovannini
          • funnyfacestudio

            I am not merely talking about money, or modeling or contracts. I am saying that if these artists are making enough money off these photographs it would be a nice thing to give something back to the Rastafarian community that allowed them to take these photographs.

          • RuthLeider

            The Rastafarian community isn’t being photographed. Some Rastafarians are being photographed. They are in a series of portrait photographs along with a hipster with a cross tattoo, cowboys, and a lady who apparently really likes Elvis Presley. This “pay the Rastfarians” sentiment is confused about the work and rather patronizing, positioning the event as involving cultural inequities.

          • annie paul

            Now THERE’s a cultural zoo–

          • funnyfacestudio

            Okay Ruth, you are entitled to your opinion but you miss my point completely. I don’t really care if these guys were paid or not when they had their photographs taken, nor am I talking about all the other subjects in the photographs. I talk only about the Rastafarian(s) because it is their image(s) that is/are gaining attention. If this attention translates to decent earnings for the photographer and now for Prince, it would be a nice gesture to give something back. Am not saying any photographer, artist or other must do so. Everyone lives in this world how they see fit.

          • RuthLeider

            First it was: “Were these Rastas paid for the use of their images?”

            Now it is: “I don’t really care if these guys were paid or not when they had their photographs taken…”

            This is nonsense. Then the follows with general interest in the well being of Rastafarians, but somehow fails to care about them individually, such as paying the subjects of the photographs.

            All this stuff is patronizing, paper-thin liberalist concern.

          • funnyfacestudio

            Again, we all find our way of living and being in this world.

            Kay Rodriques
            -Sent from my iPod-
            Art: http://kayrodriques.wix.com/kay-rodriques
            Shop: http://KayRodriquesArtWorks.etsy.com
            Art Blog: http://kayrodriques.com/

          • RuthLeider

            Pretty tasteless, linking to yourself three times. I guess we’re done.

            Good day.

      • funnyfacestudio

        I don’t know if they wanted to be paid or not paid. What I do know is that life is tough for a lot of people in Jamaica, including (especially?) Rastas. It would be nice if the artists who are making money from these photographs gave something back to the community where the photos were taken. And I don’t necessarily mean money. It could be something of value to their community. Or it could be money. Either way, giving something back would be a fitting tribute to them.

      • Den Hickey

        What makes you assume they wouldn’t? What makes you think not bothering to check is okay?

        • RuthLeider

          Usually people who participate in art projects like a portrait series (of this kind) do it for the sake of believing in the project and don’t think of themselves, by anyone, as models for hire. If pay was involved it was more likely a small “thank you” honorarium for participating, not something conceived of as a business transaction.

          It’s OK for me not to check because I don’t care at all if they were paid. I’m just exposing the fake righteousness behind funnyfacestudio’s commentary, which ended in her own gross self-promotion.

          • funnyfacestudio

            Lady, you really ought not to be on public forums if all you are looking to do is pick fights. My “shameless self promo” as you put it only happened because I rushed and replied via my iPod, which happens to have all those links. You will notice none of my other posts had them and that is because I answered those from my lap top.

          • RuthLeider

            My apologies for the offense.

    • Den Hickey

      Because Prince didn’t give a shit about the subjects. Since he is the big name here, his is the example most in media will follow on that topic.

  • Mr Cogsworth

    Most of you are missing the point of this project. It’s meant to be provocative. Don’t let the digital nature of it confuse you. By commenting on a post by someone who is not the owner of the image, then showing a screenshot of that in a gallery, you’re essentially looking at a self portrait of Prince standing next to a man wearing a bootleg t-shirt with a Donald Graham image on it. Prince has done nothing wrong, and is not in any way claiming he created the photo that “happens to be” in the “shot”. He’s simply showing you a picture of himself interacting in the public domain. In fact, pay no attention to the artistry, origins, or even context of the original image. Thats not what this project is about, but Prince knows you will get hung up on that detail. And he’s laughing at you.

    • Unhygienix

      i agree. awesome breakdown. rayban shades cool. what an artist prince is. give him a retrospective and put him in the history books.

    • annie paul

      Prince could well be a subversive artist who’s drawing attention to the pitfalls and limitations of ‘fair use’…and that could be a brilliant intervention…but it doesn’t preclude a discussion of the rights of a photographic subject Mr. Cogsworth…

  • beergas

    Hasn’t this word play been beaten to death via Man Ray, Duchamp, Pop, and especially Pettibone minatures?

  • http://www.sunflowerpipes.com Sunflower Pipes

    Art is Kaput evil is on top

  • Den Hickey

    So, basically Prince is not only appropriating Rasta culture he is also stealing images made by others, changing them ever so slightly if at all, and then creating a body of work he has admitted is basically meaningless.

    Prince is disgusting.

  • James Lieutenant

    Shouldn’t he have sent the letter to instagram?

  • BrianRouth

    there are many crooked gallerists and Gagosian is not alone!

  • psychomotikon

    It’s all about wealth creation via imprimatur. it’s all been done before. once the innovation is gone all we’re left with is wealth creation. ppl have been saying that wall street is “creative” in the way they create new financial instruments. structurally this is closer to wall street than any other creative process that i can think of.

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