Instagram, an artist and the $100,000 selfies – appropriation in the digital age

It’s a question as old as art itself: “Yeah, but is it art?”

Type it into Google and get 1.26 billion results. It lends itself to book titles, television series and conversations between white walls, whetted by prosecco.

It’s a question asked of a shark in formaldehyde; an unmade bed; a sleeping footballer; two humans meeting in silence across a table, and before those of John Cage; Mondrian; Pollock.

This question, the distant cousin of “my kid could have done that”, has quietly endured.

The decibel levels rise, however, when it comes to appropriation. Appropriation is the practice of artists taking already existing objects and using them, with little alteration, in their own works. The objects could be functional, everyday objects, or elements of other art pieces; commercial advertising material, newspaper cuttings or street debris. Anything, really.

It’s interesting, though, that some appropriation in art is seen as acceptable in the public consciousness, some not. Warhol: of course. Sampling at the birth of hip-hop – well, sure. Found object art like Duchamp’s Fountain? Hmm.

Richard Prince and the art of ‘rephotographing’

Richard Prince is a New York-based artist famous for appropriation. His work relies heavily on the work of others. Not all of his pieces or projects are appropriated, but his most famous pieces owe their existence to the technique.

Take, for instance, Prince’s “rephotographing” of Marlboro cigarette advertisements, specifically those featuring the Marlboro Man (originally shot by Sam Abell). The series, entitled – and some might say, appropriately – Cowboys, began in the 1980s. A more recent piece from the series (2000) sold for more than $3m (£1.9m) at a 2014 Sotheby’s auction.

There’s a rather brilliant PDN interview, in 2008, with Abell, who speaks about Prince’s appropriation of his photographs. At the beginning of the interview, Abell states: “I’m not angry, of course”. He then speaks for three minutes, getting angrier and angrier.

I’m not particularly amused … it’s obviously plagiarism, and I was taught by my parents the sin of that … it seems to be breaking the golden rule … he has to live with that.”

Abell’s Marlboro photographs are not the only pictures to be repurposed by Prince. In 2014, Prince settled a three-year-long copyright case with the photographer Patrick Cariou after the former used Cariou’s Yes, Rasta, a book on the rastafarian community, as part of his Canal Zone series. He’s also been known to hand out copies of A Catcher in the Rye with his own name on the cover.

Now, Prince is back in the spotlight. His current exhibition – New Portraits – opened in June at the Gagosian gallery in London, having debuted in New York in 2014.

The portraits, however, are not new to everyone – and certainly not new to their subjects.

This is because Prince’s New Portraits series comprises entirely of the Instagram photos of others. The only element of alteration comes in the form of bizarre, esoteric, lewd, emoji-annotated comments made beneath the pictures by Prince.

Prince’s pieces sold for up to $100,000 (£63,700) at New York’s Frieze art fair, according to CNN. This might not sound a lot, given the prices fetched for oher artists’ works at the Sotheby’s and Christie’s auctions in London this month – including $32.1m (£20.9m) for a Warhol painting of a $1 bill – but it is what mothers around the world would call “better than a poke in the eye with a sharp stick”.

As collaborations go, if Jay-Z and Beyonce duetting represents a bringing together of the best of hip-hop and R&B, and Scorsese, Nicholson and DiCaprio a filmmaking supergroup, then Richard Prince and the internet are an appropriation dream team.

So it is that one of the oldest questions (“but is it art?”) collides with one of the most pressing, current global debates: that of online privacy and ownership in the digital age.

‘Did you need permission?’

Prince isn’t just a visual or conceptual artist: he’s also a writer. He’s a good writer.

On his blog, and reprinted in Love magazine, he has published an essay about the genesis of New Portraits and how he discovered technology, and the way in which it has informed, and become a part of, his work.

I asked my daughter about Tumblr. Are those your photos? Where did you get that one? Did you need permission? How did you get that kind of crop?

“You can delete them? Really? What about these ‘followers’. Who are they? Are they people you know? What if you don’t want to share? How many of your friends have Tumblrs?”

Later, he writes: “This past spring, and half the summer, the iPhone became my studio. I signed up for Instagram. I pushed things aside. I made room. It was easy. I ignored Tumblr, and Facebook had never interested me. But Instagram ...”

Prince, who is active on Twitter and has over 15,000 followers, explains that his first social media project consisted of “portraits” of his family – via tweets.

I called the photo/texts tweets I was posting The Family. I posted photos of my extended family … mother, brother, sister, nieces, cousins, uncles, aunts, in-laws, step-children …

But the subjects of New Portraits are not members of Prince’s family, nor are they his friends.

For the most part, the people whose images he has appropriated are strangers: cool, creative 20-somethings, artfully or sexually posed (the majority of them women), with the odd celebrity addition (again, most of them women – Kate Moss, Sky Ferreira, Pamela Anderson, Taylor Swift, Lara Stone).

Thus, quite apart from the debate around authenticity and process (yeah, but is it art?), is the query: wait, what? You just took people’s photographs without their permission, blew them up, exhibited them and then made a lot of money?

Almost all of the people I spoke to whose pictures Prince had used had not been contacted by the artist – either to notify them of his intentions, or to ask them for permission.

The first they heard about it was when friends got in touch having seen the pictures, or when other Instagram users began to tag them in photos they had taken at his exhibition.

This, from Jan Gatewood, otherwise known as Young Duckits, is pretty typical:

Someone tagged me in a photo Richard Prince posted of me on his Instagram and said ‘you made it’.

I was confused because I was unaware of who he was. I noticed he had a pretty good amount of followers so I tweeted about what happened, and some friends further informed me of who he is and what he does. He did not get in touch with me and ask me for permission.

Furthermore, the subjects I spoke to also said Prince had yet to contact them after the fact. (Prince did tweet, however, that one subject, Nitecore, had asked him for her print, and he had given it to her).

Were these people not angry? Like, really angry?

Gatewood is honest about the fact he sees Prince using his picture as a positive because it means more exposure for him – the California-based 21-year-old works in the 424 apparel store, but he also paints, skates and makes music. But he does add that a small part of him thinks the whole thing is “ridiculous”.

Sita Abellan, who is 22 and from the south of Spain, has just moved to Tokyo to further a modelling and DJ-ing career. Abellan had heard of Prince before, and was familiar with his work.

“He’s a really cool artist, I like him very much”, she writes. “I feel special that an artist like him used my picture to make his project. But I can understand that people feel upset if he did not ask for permission”.

It’s a view echoed by Karley Sciortino, a sex columnist for Vogue, who has previously called her inclusion in the exhibition “an honour”.

So it’s fine, right? As Prince would have it – his apparent artistic raison d’etre – “what’s yours is mine.”

That could also work as the motto of the internet. When we talk about the internet, we talk about sharing. Sharing our photographs, our thoughts, links to articles we find interesting, games we enjoy playing. And the internet is as much about sharing others’ content as it is our own.

Much of what we mean by the internet is about appropriation, recontextualising and simply copying. Round and round we go.

Retweeting, regramming, reblogging, re-everything. In particular, Tumblr and Pinterest are sites specifically geared towards the sharing and collating of found content. The online, social equivalent of Duchamp’s readymade art, or objet trouvé.

Either content is source credited and acknowledged – or it isn’t.

You can put a watermark across an image, but crop tools exist (as Prince cropped out the Marlboro logo on his Cowboy rephotographs). Missed a gig? No problem, search a hashtag, screen shot, change the contrast a little, and present the photo as your own. Steal a joke from Twitter, sans h/t (hat tip).

Why shouldn’t Prince be allowed to do what all of us do, all day, every day? It’s not illegal (is it?), and anyway, women have been wearing trousers in Paris for decades, which was against the law until 2013, right? There might as well not be a law. This is the way things are. What’s yours is mine.

People own their photos – Instagram

There’s only one real answer at the moment to the question of whether Prince’s New Portraits violates copyright law or rights of publicity, and it’s this:

¯\_(ツ)_/¯

Until an action is brought against the artist, all we can do is speculate. I contacted Instagram, which is owned by Facebook, to make sure its users retained ownership of the photographs they upload. The answer:

People on Instagram own their photos. On Instagram, if someone feels that their copyright has been violated, they can report it to us and we will take appropriate action. Off Instagram, content owners can enforce their legal rights.

The spokesperson added that if a user felt their content was being appropriated in such a way that might violate copyright law, then it should be reported to its help centre.

Instagram’s – rather daunting – advice on reporting content that could breach copyright law is as follows:

Submitting a claim of copyright infringement is a serious matter with legal consequences. Before you report a claim of copyright infringement to us, you may want to reach out to the person posting the content. You may be able to resolve the issue simply by bringing it to their attention without contacting Instagram at all.

If you’re not sure whether the content you’re reporting is infringing your legal rights, you may want to seek legal guidance. Keep in mind that submitting intentionally misleading reports of infringement may be punishable under the Digital Millennium Copyright Act (DMCA) in the United States or similar laws in other countries.”

And, of course, that’s a whole other issue. Different countries have different copyright laws, and internet traffic passes through many servers in different countries. In the case of US copyright law, Prince would probably be fighting to defend his work using something called the fair use doctrine under Section 107 of the 1976 Copyright Act (as he did during his previous court battle with Cariou).

Section 107 seems to allow for appropriation. In layman’s terms, while Section 106 of the Copyright Act is all: this is your work, ain’t nobody gonna steal this. We got your back. Section 107 is a bit like: no, wait, this guy maybe can, if he can prove that it’s, like, fair for him to do so.

Prince could argue under fair use that his work is not derivative because it is “transformative”.

In this specific instance, Prince not only added his own opaque comments under individuals’ pictures before he took screen shots, but also reported previous comments as spam, ensuring they disappeared (when viewed on his own account), pushing his own comments to the top – thereby arguably altering the original work. (He writes about this hack here.)

He might also say that he has changed the very nature of the original photographs by re-contextualising them and framing them in an artistic, analogue setting and fuelling debate.

Of course, copyright law was basically invented so that people could protect their ability to make money from their original creations. So it follows that one of the most important four tenets of US copyright law is the element of commercial gain.

I don’t know about you, but I would regard $100,000 per image (£64,000) as quite a bit of commercial gain.

This is a recurring theme when speaking to the Instagrammers who have had their pictures lifted: well, sure, I could have done with some of the money, to be honest.

Apart from the smattering of celebrities, many of Prince’s subjects are aspiring or career-beginning models, actors, artists, students, in their teens and early-20s, working at clothing stores as in Duckits’ case, or bars, while finding their feet.

Selena Mooney, more commonly known as Missy Suicide, is slightly different. She is the co-founder and co-owner of the successful pin-up site, SuicideGirls.

But, as she puts it: “It is shocking to think that people are paying $90,000 for anything other than a house.”

Though one might argue that this is more a criticism of the art market itself, Mooney decided to hit back in an inventive, clever way after many images of SuicideGirls models were used by Prince.

Thinking that it would be “more fun than spending my days in court”, Mooney teamed up with publisher Eyes on Walls and decided to rephotograph Prince’s rephotographs of her photographs (I need to lie down), and sold the prints for just $90 (“99.9% off the original price”), donating all proceeds to a digital rights charity.

This, ironically, could lead to charges of Mooney breaching Prince’s copyright by appropriating his idea. As chief executive officer of Moz, Sarah Bird, puts it, an idea cannot be copyrighted, but the expression of an idea can be. Prince’s response?

“Missy Suicide is smart.”

‘It’s such a violation’

It is Mooney who has been the most vocal campaigner against New Portraits, and touched upon the element that a lot of people find most troubling: that of an older, white man (#CheckYourPrivilege) making money from pictures, mostly self-portraits, of young women in various states of undress. Live on, male gaze.

SuicideGirls was established in 2001, back in the days when the internet came packaged with a CD-Rom. Its Instagram account now has 3.5 million followers.

The website was set up to allow women – especially those not conforming to mainstream beauty standards – to take back their sexual agency.

In Mooney’s own words:

SuicideGirls is about celebrating how the model feels sexiest about herself, how she wants to be presented to the world and how she curates her own image, so to have a guy [Prince] grab the images and claim them as his own, especially to such hefty profits, is such a violation.

It’s not a great look for Prince. He’s a friend and peer of Terry Richardson – the photographer made famous for snapping naked women and allegedly pressurising them into sexual favours (and most recently seen in a documentary about Amy Winehouse, encouraging the singer, dressed in just bra and pants, to run a shard of mirror glass across her stomach).

Prince also counts Jeff Koons as a friend – the artist of giant-balloon-dog fame, who also made a series of photographs depicting him mid-coitus with his then porn star wife.

Comments Prince has posted under pictures of women, include: “Enjoyed the ride again. Let’s do it again some time. Richard.”

So far, so sleazy. But so what? When photorealist artist Panayiotis Lamprou photographed his wife, naked from the waist down with her legs open, her pubeless vagina pointed at camera, he wasn’t chastised or branded a perv – the picture was nominated for a prestigious prize and displayed in the National Portrait Gallery.

Double standards, is the argument. How come sometimes nudity is deemed OK (high art), sometime it isn’t (porn), and who gets to make that distinction?

Richardson shooting a naked Miley Cyrus is exploitative, but Rembrandt and Schiele’s portraits? That’s art. Round and round we go. Until we end up with Rupert Murdoch’s The Sun re-publishing a Vogue nude spread of Keira Knightley in defence of Page 3.

It’s a debate that won’t be put to bed anytime soon. Lamprou is different, we might say. He sought permission. It’s not, as Mooney terms Prince’s work, “a violation”.

Meanwhile, SuicideGirls has its own detractors. The site has come under criticism for being co-founded and owned by Suicide’s male partner, Sean Suhl, and Mooney’s role has been questioned.

Though, as she correctly points out, the majority of her staff are women, and it’s unlikely such scrutiny would have been applied at all if she were not its female figurehead. The website has also endured disputes with models and photographers (since resolved).

The criticism people level, though, is that SuicideGirls is just another internet porn site, nothing to do with empowerment. It’s just women taking their clothes off. Again. Why is it different if they happen to have a septum piercing?

Or, as a woman I shared a cigarette with one night while writing this piece, said:

“They say it’s for themselves, to feel good. But why would you put it online then?”

Because everything is online.

Richard Prince v ‘digital natives’

If it’s not online, did it really happen? Schrödinger’s internet cat.

Fear of missing out may have existed pre-internet, but it didn’t become a cultural and societal phenomenon with its own acronym (Fomo) before Instagram filters were added to festivals and Facebook statuses about the beauty of Bora Bora.

I never used to know that while watching Cruel Intentions in a darkened Oxford flat for the 50th time you were out partying on the Upper East Side for real. I didn’t realise my ex was getting married until Facebook told me I hadn’t been invited.

Many of Prince’s subjects, however, are – to use a phrase which should have been strangled by an ethernet cable at birth – digital natives. They always knew about the wedding.

It ages Prince when he admits to thinking Tumblr was spelt “tumbler”, and writes about how he “pushed things aside” and “made room” for Instagram. Digital natives don’t make room for digital – it is how they live. This is the way things are.

Amanda Bodell, a 22-year-old model from Sandviken, Sweden, and another subject of Prince’s, puts it rather brilliantly in an email to me:

“I get that a 65-year old thinks that a hashtag is something you smoke.”

Most of those featured in New Portraits, including Bodell, live the internet, and are active on a number of different social media platforms. Most of them have a greater number of Instagram followers than days I have been alive (I’m 25).

Don’t they ever worry about putting themselves so entirely out there?

Bodell, who has been blogging since she was 16, says that she has a separate private Instagram account just for family and friends, but apart from that, all of her online accounts are public.

“I’m almost always online, except for about 2 to 3 times a month I delete all my social medias for a day or two, it’s like a meditation thing.”

The one person featured in Prince’s exhibition I contact who says Prince did ask for permission to use her image is Australian Jen Schmitz.

When I try to seek Schmitz out on Instagram, it becomes apparent she has deleted her account. Her Tumblr is still active though, and when I view it, somebody has already asked why she got rid of her Instagram.

“Because people started treated me like an animal in a zoo, online or in real life”.

I follow up – via Tumblr, asking about Prince, and get an equivocal response:

“[Prince] asked if he could use my photo and I agreed, I don’t really feel any type of way in regards to the use of my photo.

“When I said people were treating me like an animal in a zoo, I meant that people stopped treating me like a human being with feelings – like people thought they were entitled to an opinion about my life when they’d never met me.”

Schmitz’s Tumblr, along with the social media accounts of Abellan, Duckits and Bodell, is popular because it is interesting. Their presence is widely felt and followed because it is a good presence.

Duckits tells me he “naturally gravitated” towards social outlets because he always loved learning and talking to people.

“I grew up in the suburbs of Colorado so I loved being able to feel somewhat close to the things we didn’t really have access to.”

His online presence grew after positive reactions to a series his punk band posted to YouTube. Duckits’ accounts, along with the others, are full of carefully collated art, and poetry and fashion and music. Most of it, I might add, almost certainly reproduced without permission.

An image on Schmitz’s Tumblr, for instance, is brazenly lifted straight from a stock photo site with the watermark still stretched across it, with no attempts to remove it. This, in its own way, is a perfect microcosm of the internet.

Everybody I speak with agrees that while it’s bad form to try to pass something off as one’s own, it’s unrealistic for it to be feasible to ask every single person for permission when using their image on a personal Tumblr or website.

It is, as Bodell tells me, a “very complex issue. Of course it’s a problem if people’s photos or artwork are being stolen and used for mass production and such without any credits given. But at the same time, without sharing, the internet wouldn’t exist.”

I’ve never been to a show and been so unmoved

This being the Gagosian, I have the door opened for me by a security guard dressed as slickly as an UberLux driver, rather than the polo shirts you might find at the Tate.

The London offering is smaller than Prince’s 2014 New York showing, which featured 37 portraits. This is just as well, as the room is tiny. The New Portraits exhibition is held in the Davies Street space, around the corner from Claridge’s hotel, in moneyed Mayfair. Home to people who can afford to spend $100,000 on art, I guess.

The portraits are ink-jet printed and reproduced on six-foot canvases. I suppose I should have expected this – iPhone screenshots blown up to such a size – but the quality is awful. The text of the comments in particular is so blurry it feels like I’m looking through contact lenses clouded by having slept in them.

Most of the subjects’ portraits are unremarkable, but then, why wouldn’t they be? They were never intended for a high-end gallery show. Some, however, are witty, playful. Others banal, or smack of the poseur.

I spot Duckits’ picture. Abellan is there, too. Her picture, a bathroom-mirror selfie, she thinks she took when she was at home sick. She wrote to me that she has had a lot of shit for it on Instagram, people being rude about it “because I don’t have breasts. I’m ok with it though, cos I found it funny to confuse people about my sex”.

Bodell is also there. And the SuicideGirls. There are other subjects. A prince from the United Arab Emirates, celebrities, some young guys in Snapbacks, two women scissoring.

I ask the security guard whether he likes the exhibition. He gives me a look which manages to combine: a) what, this crap? b) utter indifference c) concern for his job. At this point, given that I’m the only person in the gallery, a young man wearing Buddy Holly glasses, a member of staff, asks if he can help.

He’s more enthusiastic about New Portraits. He may be professionally obliged to be – Larry Gagosian has a longstanding relationship with Prince and represents him – but he also seems genuine. He talks about what it all means: appropriation, age of internet etc. Sure, sure, I say.

But I can’t help thinking that I’ve never, ever been to a show and been so unmoved. So underwhelmed. So what’s-the-point? And this is coming from a bonafide Abramovich fan, a lover of Emin, and someone who actually thinks Koons can be quite beautiful.I got nothing. The pictures themselves are not particularly interesting and Prince’s commentary is just irritating, like the guy on the train who refuses to stop making rubbish jokes, while simultaneously looking down your top.

Art as genius trolling

The New Yorker’s Peter Schjeldahl said his response to New Portraits was a “wish to be dead”. And art critic Jerry Saltz, in defending Prince, admitted that the artist was guilty of “genius trolling”. He is. Just last week he tweeted a screen grab of a Google image search when someone asked him about his process.

When I asked him for comment for this piece he tweeted the following to me:

He does, however, seem to have elaborated on his thoughts in a series of tweets on the exhibition, mostly mocking the charge of appropriation.

ArtNet published a review with the rather succinct title: Richard Prince Sucks. “Prince is painfully removed from the youth culture in which he’s participating, which only extenuates the project’s problems,” it stated. But what really are the problems at the project’s core?

Is it that Prince took the photos of strangers and used them without their permission (even though many of his subjects re-post and re-blog images they also do not own)?

Or is it that a majority of the images are of women, wearing few clothes, and these were reused without their knowledge?

Or is this a David and Goliath issue, all about an imbalance of power? That a multi-millionaire artist can take stuff belonging to kids making their way in the world, and convert it into cold, hard, cash?

Another subject of Prince’s, 19-year-old student Anna Collins, told Business Insider: “I just think about how I’m a working student in school, I’m extremely broke, and here is a middle-aged white man making a huge profit off of my image. Kind of makes me sick. I could use that money for my tuition.”Further, she didn’t even take the picture of herself lounging around with her boyfriend, she said. Her sister did.

And to the question: yeah, but is it art? We can’t deny that Prince has added to the debate around online privacy, appropriation and internet freedom. He’s asking us to explore ourselves, and our choices and the way we present to society. That’s part of what art should do, right?

One wants to say the question of whether Prince’s New Portraits is art is easily answered: of course.

And then you remember: yeah, but he’s literally just taken screen shots of photos of 20-year-olds in pools and added random comments alongside the wink emoji.

My kid could have done that.