Gagosian notches victory in lawsuit brought by photographer over Richard Prince’s New Portraits series

Donald Graham's Rastafarian Smoking a Joint (left) and Richard Prince's Untitled (Portrait of Rastajay92) (right)
The ongoing copyright saga of Richard Price’s series of large reproductions of Instagram posts is one step closer to coming to an end. On 11 September, the US District Court for the Southern District of New York ruled that Gagosian, which represents Prince, is not liable for profits made from the artist’s contentious New Portraits series, Annie Armstrong reported in Artnet News. Whether the specific Prince work in question, Untitled (Portrait of Rastajay92), violated copyright law remains to be determined.
Prince first showed his New Portraits works in 2014 at Gagosian’s Madison Avenue gallery space in New York, where they were sold for $100,000 each and sparked debates about art, copyright and appropriation—as well as several lawsuits.
One of the suits was brought by the photographer Donald Graham, whose image Rastafarian Smoking a Joint appeared in Prince’s Untitled (Portrait of Rastajay92), one of the works in the aforementioned series. Graham first sent a cease-and-desist letter, then sued Gagosian for copyright infringement in 2015. Gagosian had used Untitled (Portrait of Rastajay92) to promote the exhibition of Prince’s series of 73 pieces, and Graham sought compensation for the “unrealised profits” associated with the use of his photograph and the hypothetical sale of Untitled (Portrait of Rastajay92), which Gagosian currently owns and has not yet sold.
This week, the court dismissed Graham’s suit for compensation, arguing that Gagosian’s theoretical profit (as outlined by Graham in his suit) was “not sufficiently connected to the alleged infringement and overly speculative”.
In May, a New York judge ruled that Untitled (Portrait of Rastajay92) was not “transformative” enough to shield Prince from litigation, and that Graham’s copyright case can proceed to trial. The ruling also covered a second disputed Prince work from the series, which appropriated a portrait of musician Kim Gordon by photographer Eric McNatt. Both cases are now awaiting trial. They will be closely watched, especially considering the recent US Supreme Court ruling against the Andy Warhol Foundation in the late artist’s appropriation of a portrait of Prince (the musician, not Richard) by the photographer Lynn Goldsmith.

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