A new lawsuit greets Richard Prince in the new year. Following the appropriation artist’s unauthorized use in 2014 of a picture of a Rastafarian smoking, its photographer, Donald Graham, is now suing Prince. Graham filed three claims against Prince, the Gagosian Gallery, and Larry Gagosian — who purchased Prince’s work — on December 30, 2015 for willful infringement upon his rights under copyright law. The image in question, a black-and-white photograph titled “Rastafarian Smoking a Joint, Jamaica,” first appeared in Prince’s New Portraits exhibition at the gallery, which was notorious for consisting simply of 37 blown-up printed screenshots of Instagram posts on which Prince had commented. At the most recent Frieze art fair, they sold for up to $90,000. Graham’s federal suit follows his mailing of cease and desist letters to Prince and the gallery last February, which demanded they stop showing and distributing Prince’s work with Graham’s photograph and remove all unauthorized reproductions found in catalogues or on websites.
The publicly available court record accuses Prince of “blatant disregard of copyright law.” In it, Graham notes that Prince’s infringing work modified his copyrighted photograph through only the resizing and the slight cropping of its edges. He also claims the defendants never obtained permission to use his photograph in the exhibition and in the accompanying catalogue nor gave him any attribution or compensation (the screenshot Prince chose was not of Graham’s own Instagram but that of another user, @rastajay92, whose post was also unauthorized). The image also appeared on a billboard that stood along 50th Street and West Side Highway that promoted the exhibition for several months, even past its closure.
Similar to the demands in the cease-and-desist letters, Graham is fighting to halt distribution of the Prince image in addition to being granted either statutory damages in the legal maximum amount or in profits received by the defendants.
Describing Graham’s own hard efforts to create his photograph, the suit notes that he took the photo on a two-week trip in 1996 to Jamaica that he expensed himself. There, he took photographs of the Rastafarian community, speaking extensively with them to emphasize “that his purposes were artistic and to overcome an inherent distrust due to his ‘outsider’ status.” First published in August 1998 in Communication Arts magazine’s Photography Annual 39 issue, “Rastafarian Smoking a Joint, Jamaica” is meant to be available exclusively through Graham’s studio and Paris’ A. Galerie in limited editions and sizes.
Graham’s complaint also refers to a portion of a quote by Prince from his 2011 interview with Russh Magazine:
Copyright has never interested me. For most of my life I owned half a stereo so there was no point in suing me, but that’s changed now and it’s interesting … So, sometimes it’s better not to be successful and well known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention.
The quote was given in the context of Prince’s then-ongoing lawsuit with the French photographer Patrick Cariou over his appropriation of Cariou’s own Rastafarian images. The rest of it reads:
Basically I like the way things look; that’s all my decisions are about — if it looks good, it is good. So anyway, unfortunately I took too many of these Rastafarian (images) from this guy and I didn’t really even think to ask. I don’t think that way, it didn’t occur to me to ask him and even if I did and he said no, I still would have taken them. I figured I’d do them and maybe if he objected I’d deal with that later.
Prince did have to eventually deal with it, in a saga that stretched for five years through March 2014 and ended in an out-of-court settlement. In response to this most recent suit, he took to Twitter yesterday:
The statement echoes one the court document describes he made on October 25, 2014 (it appears to have since been deleted), responding to Graham’s wife, who had tweeted about the appropriated image. “You can have your photo back,” Prince wrote. “I don’t want it. You can have all the credit in the world.”