This is an extract from the book “Law, Art and the Commons” (2018) by Merima Bruncevic. The book presents the new way of thinking about the art, law, cultural commons and their interconnections through the lens of the theory of the French philosopher Gilles Deleuze and the French psychoanalyst Felix Guattari. Among other things it sets and explores the concepts of lawscape, helps to regard the law broader then just a "box" and to overcome the existing, long-standing legal dichotomies (artist-user, public-private, right-heritage, etc.). This book is an experience!*
*Intro by ArtLaw.club
Extract from the book “Law, Art and the Commons” (2018) by Ll.D Merima Bruncevic, Senior Lecturer and Research Fellow based in the Department of Law, Gothenburg University
(Licenced by INFORMA UK LIMITED, PLSclear Ref No: 8063)
[…] 4.3. Richard Prince and art on Instagram
New Portraits, a series by the artist Richard Prince, has in the last two years become one of the most discussed artistic creations. Using the images posted by people that he follows on Instagram, and only making some minor edits to the captions, Prince blew up the images and printed them in canvas. One of the canvas images was sold for USD 90 000. Prince is known for his “re-photographing”, repurposing and appropriation techniques. He is also quite used to finding himself in litigation, subject to claims for among other things infringement of copyright laws, for instance in the now famous case Cariou v.Prince where a French photographer Patrick Curiou brought a copyright infringement claim against Prince’s appropriation of images. Cariou had taken images of members of a Rastafarian tribe that were subsequently altered and repurposed by Prince. Prince won the case for 23 out of the 25 images on a fair use defence, and the two artists settled regarding the last two images. New Portraits has now also been legally challenged by among others the LA-based photographer Donald Graham whose Instagram post was one of the images used in New Portraits. The case raised by e.g. Graham shines a light on a number of issues connected to New Portraits in terms of the notion of the artistic subject, the legal subjectivity and privacy-based rights that emerge within the virtual sphere, or the infosphere.
4.3.1. The Death of the Author
New Portraits became a notorious global exhibition in 2015. Audiences around the world flocked to see Prince’s images in the Gagosian galleries where they were exhibited. Many of the patrons also took their own photos in front of the images exhibited, uploading them on their own Instagram accounts. As such, the exhibition existed both in the “real world” and in the virtual sphere, simultaneously. It became continuous, open for everybody to engage with and make additions to. The overwhelming sensation of simultaneously being exposed to both the presence and the absence of the author was clear.
It can be claimed that the exhibition is marked by the presence of an omniscient author in an almost traditional, romantic, sense. The art being exhibited is made by one of our time’s most prominent contemporary artists. Prince is well known both in the connoisseur art world as well as to the broader public. He has been a practicing artist since the 1970s and his oeuvre is already well established. To people who are familiar with his works he is associated with appropriation of popular culture, exploration and critique of morality, exposure of the body as well as works that are based on collage. New Portraits is in no way an exception from this style. Prince’s established artistic persona is very much present in this series.
This exhibition was curated and exhibited in a very classical manner where the author is put at the forefront: a solo exhibition that comprises of printed physical works exhibited in a traditional gallery space. The works were shown and sold through one of the most prominent and influential galleries in the world, namely the Gagosian Gallery. There was a catalogue, a press-release, a commercial framing of the exhibition where the author no doubt was placed centre stage. Artistically, the omnipresence of the author was thus unmistakable. The images appear to be very much auteur-based expressions. The gaze of the artist (some might say a very much white, male, middle-aged, Western, gaze, but a gaze nonetheless) is unquestionably present in every image. There is a clear narrative being recounted by the author, and the images are equally confrontational as they are provocative, thus making the author’s presence unquestionable.
At the same time, there is an almost uncanny absence of the author. The images being exhibited are neither paintings nor photography in a traditional sense. In fact, the exhibition comprises of images posted by people that Prince follows on Instagram. After posting a comment on the images on the Instagram platform, Prince then took a so called “screen grab” of the interaction, blew up the image with the comments visible, and printed it onto a physical canvases. None of the images were thus actually taken by him. All of the images were in some shape either self-portraits (“selfies”) taken by the people themselves, or regular portraits that people around the world posted on their Instagram feeds taken by someone else, but not Prince. For the purpose of his prints on canvas Prince has chosen to keep everything as it appeared on his screen, to e.g.keep the Instagram interface and not edit the images. He also kept the Instagram letter font, he did not alter the images in any way, he kept the real user handle (username) of the people whose image he screen grabbed. The only thing that he altered were some of the captions (comments). The comment alteration was done by an act of “hacking”, as he calls it. […]
This manipulation of comments is the only visual presence of Prince in the images. Otherwise it can be claimed that as an author he is absent in the sense that if we did not know better this exhibition would appear to be a collection of works by a number of unnamed (no real names, only handles), people. So who is the author of these works? The one who created the content or the one that edits and curates the content?
This is not, by far, the first time the question of who is the author in contemporary art has been posed. Nor, by extension, is it the first time that the adjacent question of “what is an author” has subsequently been raised. And it certainly is not the first time these questions have been juxtaposed with the legal questions of authorship and the creation of artistic works in for instance intellectual property law. And finally, this is not the first time, that the infosphere and spaces of artistic creation have been explored for their potential in the creation of subjectivity. So what does this case study have to add to all of this? It puts them all together, exploring their role in terms of questions connected to the notion of the author (dead or alive?), production of space through artworks as hyperobjects, production of legal space through application of lawscape, all of this will later on be necessary in advancing the discussion concerning the commons.
End of the extract.
Further within the New Portraits’ chapter the author talks about private and individual author-genius as the legal subject, dichotomies of creation and inforgs, a process of oscillations between material and immaterial and the nomadic legal subject as an assemblage.
 Cariou v.Prince, 714F. 3d 694 (2d Cir.2013) [USA]