ADDITIONAL CASES Eric McNatt, Plaintiff v. Richard Prince, Blum & Poe, LLC, Blum & Poe New York, LLC, Defendants; 16-CV-8896 (SHS) OPINION & ORDER Plaintiffs Donald Graham and Eric McNatt each bring a separate action against defendants Richard Prince and several art galleries under the Copyright Act, 17 U.S.C. §101. Prince, a well-known appropriation artist, incorporated photographs taken by Graham and McNatt into his series New Portraits without first seeking their permission to do so. Defendants contend that the use of these images is a protected “fair use” under the Copyright Act. The court here addresses two pending motions for summary judgment. In Graham v. Prince, et al., 15-cv-10160, Prince moves for summary judgment in his favor against Graham. (Graham Notice of Mot., ECF No. 123.) Defendants Laurence Gagosian and Gagosian Gallery join in Prince’s motion. (See Graham MPSJ at 1 n.1, ECF No. 141.) In McNatt v. Prince, et al., 16-CV-8896, defendants Prince, Blum & Poe, LLC, and Blum & Poe New York, LLC move for summary judgment in their favor against McNatt. (McNatt Notice of Mot., ECF No. 116.) For the reasons that follow, the two motions for summary judgment are denied. I. FACTUAL BACKGROUND The following facts are undisputed except as otherwise noted. A. Richard Prince and his Artwork Defendant Richard Prince is a well-known contemporary appropriation artist. (Graham SOF 1; McNatt SOF 1.) Appropriation art, as one expert describes it, involves a “radical transformation of the original image or text” using strategies such as aesthetic alteration, conversion of authorship, recontextualization, cultural commentary, and pastiche or parody. (McNatt Boyajian Decl. Ex. 8 37.) As the U.S. Court of Appeals for the Second Circuit has observed, “Prince’s work, going back to the mid-1970s, has involved taking photographs and other images that others have produced and incorporating them into paintings and collages that he then presents, in different contexts, as his own.” Cariou v. Prince, 714 F.3d 694, 699 (2d Cir. 2013). His work has been featured by many of the world’s preeminent art museums, including the Guggenheim and Whitney in New York City and the LACMA in Los Angeles. (Graham SOF 2; McNatt SOF 2; McNatt Boyajian Decl. Ex. 8 28) Prince’s art is no stranger to controversy. His 2008 series Canal Zone was the subject of a similar lawsuit in this district. See Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011), rev’d in part, vacated in part, and remanded, 714 F.3d at 697. B. Prince’s Creation of New Portraits The instant actions arise in connection with Prince’s series entitled New Portraits. In 2014, Prince was inspired by the social networking platform Instagram to create a series of portraits. (Graham SOF 3; McNatt SOF 3.) Over the course of several months, Prince reviewed the profiles of hundreds of Instagram users to find images that he wanted to feature. (Graham SOF 4; Graham Prince Decl. 11; McNatt SOF 4; McNatt Prince Decl. 11.) To create an individual portrait, Prince employed one of two techniques. For many of the portraits, Prince chose to feature another Instagram user’s post. (McNatt SOF 5.) Prince would “comb[] through all of the comments…to determine which comments had interesting language that he wanted to comment on and include in his portrait.” (Graham SOF 5; McNatt SOF 5.) After realizing he could keep only three comments in a screenshot, he manipulated which comments appeared in the screenshot by reporting other users’ comments as spam. (Graham SOF 8; McNatt SOF 9.) This allowed Prince to determine which comments appeared underneath the Instagram post. To create the other portraits, Prince opted to post an image straight from his own Instagram account, @richardprince4. (McNatt SOF 5.) This allowed Prince to add his own caption and comments without manipulating the comments of other users. Prince views the use of language as “crucial” to his artwork. (Graham Boyajian Decl. Ex. 36 39.) Adding comments was his “contribution” (Graham Boyajian Decl. Ex. 14 at 126:19; Graham SOF 6; McNatt SOF 7), and, according to him, “the most important part of the portrait,” (Graham Boyajian Decl. Ex. 14 at 126:7-9). Regardless of which of the two techniques he utilized, Prince next captured the image as a screenshot on his iPhone and cropped the file so that the resulting portrait included only Instagram content framed by white space. (Graham SOF 10; McNatt SOF 11.) In this way, Prince describes his iPhone as serving as his “scissors,” “camera,” and “paintbrush.” (Graham SOF 4; McNatt SOF 4.) Ultimately, each image was printed onto an Inkjet canvas measuring 65.75″ x 48.75″ and then wrapped around wooden stretchers to give the feel of a three-dimensional iPhone screen. (Graham SOF 13; McNatt SOF 14.) The photographic element — i.e., the image posted by the Instagram user — measured approximately 41 x 41 inches. (Graham SOF 14; McNatt SOF 15.) Over the course of the litigation, Prince has articulated varying purposes behind the creation of New Portraits; indeed, his intent remains a key point of disagreement between the parties. During his deposition, Prince explained that his purpose was to “comment on [] social media, the whole idea of putting up images on a new platform that was available to anyone, to an entire population.” (Graham SOF 17; McNatt SOF 18.) Similarly, in his sworn declaration, Prince confirmed the series was intended “as a serious and an amusing commentary on social media and art” and “to satirize and provide commentary on the manner in which people today — all people — communicate, present themselves, and relate to one another through the new technology of social media.” (Graham SOF 17; McNatt SOF 18.) Prince envisioned that “each portrait represented a part of a novel, and that when the portraits were exhibited together, they represented a democracy and told a complete story.” (McNatt SOF 30.) However, as discussed in detail below, plaintiffs argue that these proffered statements conflict with other deposition testimony given by Prince. (Graham Plaintiff’s Response to SOF 17; McNatt Plaintiff’s Response to SOF 18.) As noted, the two New Portraits at issue incorporate photographs originally taken by plaintiffs Donald Graham and Eric McNatt. C. Facts in Graham v. Prince, et. al. 1. Graham’s Creation of Rastafarian Smoking a Joint Graham is a professional photographer specializing in portraiture. (Graham Counterstatement of Material Facts ["CSOF"] 1, ECF No. 158.) Graham has been commissioned to take photographs for commercial purposes and has licensed his work to numerous publications. (Id. 2.) His work has been displayed by the Metropolitan Museum of Art and has appeared in more than one hundred magazines, including Vanity Fair, Elle, Vogue, Paper, Time, and Sports Illustrated. (Id.
3, 4.) In 1996, Graham travelled through rural Jamaica and photographed the image entitled Rastafarian Smoking a Joint on black and white film. (Id.
