A years-long litigation process has finally been put to rest: Richard Prince must pay more than half a million dollars to two photographers who filed suit against him and his representing galleries for copyright infringement. As of Thursday, January 25, Donald Graham and Eric McNatt, two of several artists whose photographs Prince found on Instagram and “remixed” in his controversial New Portraits series in 2014, are set to be awarded five times the retail price of Prince’s prints for reusing their images, as well as litigation costs “agreed-upon by the parties.”
Prince is slated to pay more than $650,000 between McNatt and Graham, as well as an additional $250,000 for incurred litigation costs excluding attorney fees.
“When I sued Richard Prince more than seven years ago, it was hard to imagine I’d be, along with Donald Graham, part of these history-making judgments finally holding Prince accountable for his conduct,” McNatt said in an email to Hyperallergic. “It’s a victory not just for me, but for all working artists like me. We might not have the same profile of a celebrity artist, but we deserve credit and compensation for our work.”
Prince’s polarizing artistic practice is defined by “rephotography,” or appropriating existing images with little to no alterations and recontextualizing them in his work. In New Portraits, Prince commented on and screen-captured various Instagram posts, scaled them up, and had them printed and stretched on canvas. The series was first presented at one of Gagosian’s New York gallery locations in 2014, after which it was displayed at Blum & Poe Gallery in Tokyo in 2015, circling back to Gagosian’s Beverly Hills location in 2020.
Graham, whose 1997 portrait of a Rastafarian man smoking a joint was incorporated into the series, filed a copyright infringement suit against Prince and Gagosian in 2015 after sending multiple cease-and-desist letters to the artist and gallery over the reuse of the photo. That suit outlines how Graham traveled to Jamaica and spoke extensively with the Rastafarian community to earn their trust in order to photograph them as an outsider. The photo had also appeared on a promotional billboard for Prince’s exhibition in Manhattan and remained posted for some time after the show ended.
McNatt, whose commissioned portrait of Sonic Youth vocalist and guitarist Kim Gordon for Paper magazine was reappropriated for New Portraits, subsequently filed a copyright infringement suit in 2016 against Prince and Blum & Poe. Prince’s reproduction of McNatt’s photo was also printed in a Blum & Poe book of the series and exhibition.
In 2017, Prince and Gagosian tried to have Graham’s case dismissed on the grounds that Prince’s reuse was “transformative,” though Judge Sidney H. Stein rejected their bid, outlining that Prince hadn’t materially altered Graham’s photo. After hearing oral arguments in 2020, Judge Stein denied Prince’s “Fair Use” argument in May 2023 , enabling the suits to proceed. In September, however, he ruled that Gagosian gallery was not liable for profits made from the New Portraits series.
These final judgments were made only days before McNatt’s scheduled trial on Monday, January 29.
“After eight years of litigation while making eight-figure demands for damages and the additional requirement of Richard admitting infringement, the Plaintiffs approached us on the eve of trial to settle for cents on the dollar and no admission of infringement,” Prince’s Studio Manager Matt Gaughan stated to Hyperallergic. “We’re very happy with that. This settlement allows Richard and all of the artists, to move forward with their practices.”
The photographers’ attorney, David Marriott of Cravath, Swaine, and Moore LLP, refuted Gaughran’s assertions, telling Hyperallergic that these decisions were not settled between parties but rather constituted “final judgments” ordered by Stein.
“[My clients] declined to enter into confidential settlement agreements with [Prince and his galleries],” Marriott continued. “The allegation that either Mr. Graham or Mr. McNatt ‘approached [them] on the eve of trial to settle’ is false. And the allegation that the parties ‘settled for cents on the dollar’ is false. The plain language of the judgment awards each of Mr. Graham and Mr. McNatt damages in an amount equal to five times the sales price of the relevant New Portraits work.”
“Richard Prince tried to buy me off throughout this litigation,” McNatt elaborated to Hyperallergic. “I refused repeatedly. What I wanted was a judgment that he infringed my copyright, and that’s what I got.”
Graham told Hyperallergic that the decision is “a victory” he shares with other artists who depend on copyright protections for their livelihood.
“I hope by persisting throughout this long-running litigation that I’ve raised awareness of what is — or, at least, what is not — fair use,” Graham said. “Standing up to some of the most powerful figures in the art world was not easy.”
Per Judge Stein’s decision, Prince, Gagosian, and Blum & Poe are also “enjoined from reproducing, modifying, preparing derivative works from, displaying, selling, offering to sell, or otherwise distributing” Graham and McNatt’s photographs.
Neither Graham, Blum & Poe, nor Gagosian immediately responded to Hyperallergic’s requests for comment.
Editor’s note 1/30/24 10:25am EST: A previous version of this article incorrectly cited the amount to be paid to the artists as $650,000, including $250,000 for litigation fees. The $650,000 is separate from the $250,000 for litigation fees.
