The Selfie‐Made Man: A Case Study in Law, Ethics, and Instagram

• Published date: 01 July 2016
• Date: 01 July 2016
• Author: Lee B. Burgunder
• DOI: http://doi.org/10.1111/jlse.12046

Journal of Legal Studies Education

Volume 33, Issue 2, 181–233, Summer 2016

The Self‌ie-Made Man: A Case Study

in Law, Ethics, and Instagram

Lee B. Burgunder∗

I. INTRODUCTION

There is little question that students, today, conduct their lives in far different

ways than they did just a few years ago due to the rapid rise of social media

platforms. These days, the new millennials spend an enormous amount of

their time with applications such as Facebook and Instagram to interact with

each other, gather information, attract attention, f‌ind dates, make social

comments, and conduct business. The digital tools that are common in these

environments have facilitated new methods of communication, as well, lead-

ing participants to seemingly adopt new cultural norms in the conduct of

their everyday lives.

For instance, just ask your students if they have ever taken a screen-

shot of a picture, poster, or slogan, and then reposted it on Instagram with

their own personal commentary. Did they ever stop to think that they might

be stepping on someone else’s toes, such as by violating their copyrights

or intruding on other personal interests? They may provide explanations,

such as a lack of copyright notice, or rationales that ring of fair use, such

as the nonprof‌it nature of their communication. These statements demon-

strate that they may know a little bit about the possible applications of certain

legal principles, but that is all—just a little bit. They also may claim that ev-

erybody is doing it, so they presumably cannot be faulted for going along.

And of course, they will note their willingness to take it down if someone

complains, so what is the big deal, especially since they have already gotten

the attention they wanted? Here, the replies point to a new culture estab-

lished within the medium that accepts expressions based on copying, com-

mentary, and sharing. They also demonstrate some contempt for the law by

∗Professor of Business Law & Public Policy, Orfalea College of Business, Cal Poly, San Luis

Obispo.

C2016 The Author

Journal of Legal Studies Education C2016 Academy of Legal Studies in Business

181

182 Vol. 33 / The Journal of Legal Studies Education

suggesting that the conduct would be ethical even if, strictly speaking, it might

be illegal.

Richard Prince, a well-known appropriation artist, recently discovered

this world and liked what he saw. Fresh from what many experts thought

was a surprising victory in a controversial copyright case,1Prince made head-

lines by pressing ever deeper into the gray areas of art, technology, and the

law. Specif‌ically, Prince took screenshots of personal photographs that were

publicly displayed on Instagram accounts, included his own comments, en-

larged and printed them on large canvases, and displayed them at a New York

gallery and art fair. Although a few of the pieces were of celebrities, most of

them showed pictures posted by everyday individuals. Beyond the bold fact

that Prince’s art consisted almost entirely of portraits that he mined from

Instagram, some art experts and the subjects themselves were astounded that

the pieces sold for tens of thousands of dollars, some reportedly for as much

as $90,000.2Some subjects, of course, bathed in the sudden publicity that

the exhibits gave to their Instagram prof‌iles, in a sense fueling the attention

that they continually seek when they post their photos on the site.3Others,

though, wondered how Prince could get away with such a bold move and

prof‌it so handsomely from what at f‌irst blush appears to clearly violate their

rights, especially without asking for permission.4Despite this criticism, some

art experts came to Prince’s defense, calling his work “genius” among other

things.5

Richard Prince thrives on controversy, and the f‌irestorm he raised by

his actions makes wonderful fodder for debates, and ultimately learning, in

any law or ethics class. Of course, the scenario requires students to consider

the application of fair use principles to copyrighted works on Instagram as

well as to balance free speech with privacy or publicity rights. But when

1Cariou v.Prince, 714 F.3d 694 (2d Cir. 2013).

2See Nate Freeman, Welcome to a Very Instagrammable Frieze!,VULTURE (May 14, 2015), http://

www.vulture.com/2015/05/welcome-to-frieze.html; Lizzie Plaugic, The Story of Richard Prince and

His $100,000 Instagram Art,T

HE VERGE (May 30, 2015), http://www.theverge.com/

2015/5/30/8691257/richard-prince-instagram-photos-copyright-law-fair-use.

3See, e.g., Hannah Parkinson, Instagram, An Artist and the $100,000 Self‌ies—Appropriation in the

Digital Age,T

HE GUARDIAN (July 18, 2015), available at http://www.theguardian.com/

technology/2015/jul/18/instagram-artist-richard-prince-self‌ies.

4Id.

5See infra notes 24-25 and accompanying text.

2016 / The Self‌ie-Made Man: A Case Study in Law, Ethics, and Instagram 183

one digs deeper, as lawyers must, one f‌inds many more topics that beg for

resolution. These include issues about copyright ownership, registration and

damages, as well as other key questions, such as choice of law.6As we shall see,

many of these can lead to genuinely passionate presentations and discussions

among student groups because few of them have been clearly resolved by

legal precedents. Although at the end of the day, the majority of the class

will probably conclude that Richard Prince violated the law, they also will

determine that Prince nonetheless will ultimately enjoy enormous personal

gains, both monetarily and through enhanced notoriety. This, of course,

again raises questions about the morality of engaging in illegal behavior

when it is prof‌itable to do so, which echoes the theme perhaps raised by the

students regarding their own conduct and morals on the web.

II. THE ESSENTIAL FACTS OF THE CASE STUDY

Richard Prince is among a set of contemporary artists who appropriate exist-

ing images to enhance the critical value of their own works, usually through

social commentary. On the most basic level, appropriation artists, as they are

often called, take images from their normal expected contexts and present

them in new forms, combinations, or on unexpected media so that the view-

ing public may see them in different lights and perhaps question their nor-

mal social meanings.7There are many prominent examples of appropriation

artists, and you might do a simple image search in class to give the students

a feel for the types of works that have gained notoriety.8However, they likely

are most familiar with the works of Andy Warhol, especially his silkscreens of

6Trademark rights, among other potential issues, may also be relevant to the appropriation of

Instagram photos, but covering them would not add signif‌icantly to the discussion since they

are treated similarly to the right of publicity. See, e.g., ETW Corp. v. Jireh Publ’g, 332 F.3d 915,

925-26 (6th Cir. 2003). The only difference is that a trademark (or false endorsement) claim

requires proof of likely confusion as to sponsorship. See, e.g., Fifty-Six Hope Road Music, Ltd.

v. A.V.E.L.A., 778 F.3d 1059, 1072-73 (9th Cir. 2015).

7See, e.g., Darren Hick, Appropriation and Transformation,21FORDHAM INTELL.PROP.MEDIA &

ENT. L.J. 1155, 1155-56 (2013); Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation,

93 COLUM.L.REV. 1473, 1477-84; Cariou v. Prince, 714 F.3d 694, 699 (2d Cir. 2013).

8The following is a list of well-known appropriation artists: Keith Haring, Jeffrey Koons, Sherrie

Levine, Roy Lichtenstein, Claes Oldenburg, Susan Pitt, Robert Rauschenburg, Larry Rivers,

David Salle, Kenny Scharf, and Andy Warhol.