Photographers Donald Graham and Eric McNatt Defeat Summary Judgment in Copyright Infringement Litigation Against Appropriation Artist Richard Prince

On May 11, 2023, the U.S. District Court for the Southern District of New York denied summary judgment to appropriation artist Richard Prince and his associated galleries in two copyright infringement cases brought by Cravath clients, the photographers Donald Graham and Eric McNatt, regarding works from Prince’s “New Portraits” series.

The district court rejected defendants’ argument that Prince’s wholesale copying of Graham and McNatt’s photographs—which Prince posted to Instagram along with his own comments, printed on physical canvas and then sold—constituted fair use as a matter of law. “Elucidat[ing] that boundary” between appropriation art and copyright infringement, one that is increasingly difficult to distinguish as “boundaries between technology and art blend,” Judge Sidney H. Stein found that Prince’s modifications were not transformative and, on balance, the four statutory fair use factors weigh significantly against a finding that Prince’s works are protected fair use under the Copyright Act.

Cravath partners David J. Kappos and David R. Marriott originally began working with Graham, and later McNatt, while serving as co‑instructors for the Copyright Dispute Resolution Externship in association with Columbia Law School, in an effort to establish a clinical teaching environment having substantial real‑world impact. In the more than seven years since, Marriott and Kappos, with the enthusiastic cooperation of the plaintiffs, have provided dozens of law students an exceptional opportunity to not only engage with copyright jurisprudence but also—as demonstrated by the district court’s ruling—to be a part of shaping it.

The Cravath team included partners David J. Kappos and David R. Marriott and associates Christopher P. Davis and Nicole D. Valente.

The cases are Graham v. Prince et al (15‑cv‑10160) and McNatt v. Prince et al (16‑cv‑08896).