[Image rights have entered the chat]

The digital ink has barely begun to dry from my previous forays into NFTs (first in the series here), but now we’re being presented with another interesting chapter in the NFT copyright saga, with perhaps a hint of transformative use and a sprinkling of image and publicity rights. The New York Times is reporting that model Emily Ratajkowski is planning to issue an NFT of the controversial work by appropriation artist Richard Prince which features herself.

This one requires quite a lot of background if you’re unfamiliar with the story. Richard Prince has quickly acquired mythical status amongst copyright scholars, perhaps only exceeded by Jeff Koons. Prince is famous as an appropriation artist, and came into prominence in the 80s when he issued a series of photographs of cowboys taken from Marlboro ads, in which he removed all the framing and lettering, and issued them as artistic portraits on their own right. He’s most famous in recent years for his Portraits series, in which he takes pictures and prints them as Instagram posts with text underneath that he calls Birdtalk, part nonsense, part veiled commentary, part hashtag game. The artwork has received mixed reviews to say the least, some call it lazy, some see it as visually audacious. The series was beset by controversy with the inclusion of a sexual abuse survivor and a few portraits of Rastafarians. Besides some other legal shenanigans (which will be discussed later), one big controversy in the Portrait series was the inclusion of pictures by celebrities Emily Ratajkowski and Kate Moss.

Ratajkowski’s pictures in particular generated quite a bit brouhaha at the time. Prince used two pictures of her, one a semi-naked shot from a magazine cover, and one from a Sports Illustrated shoot. The Sports Illustrated one in particular became an item of contention. There were hints that she objected to the artwork, but then posted it hanging on a wall in her apartment, which some felt was an endorsement. She then posed in front of it for two photos (pictured above), the intention seems to be a criticism of the appropriation of her work. Then last year she made no secret that she truly objected to the use of her image without her permission in a fantastic essay in which she deals with Prince’s artwork, but also with other instances of unauthorised release of images of her from a previous partner. She writes:

Everyone, especially my boyfriend, made me feel like I should be honored to have been included in the series. Richard Prince is an important artist, and the implication was that I should feel grateful to him for deeming my image worthy of a painting. How validating. And a part of me was honored. I’d studied art at UCLA and could appreciate Prince’s Warholian take on Instagram. Still, I make my living off posing for photographs, and it felt strange that a big-time, fancy artist worth a lot more money than I am should be able to snatch one of my Instagram posts and sell it as his own.

It turned out that Ratajkowski and her then boyfriend purchased the image from Prince, and she now owns it fully after a breakup.

So now we come to the present, and her release of an NFT. The interview offers an insight into what it’s like right now in the crazy NFT space, and Ratajkowski expressed that celebrities are being approached by agents, cryptobros, and an assorted number of intermediaries to encourage them to jump into the NFT bandwagon. One thing that comes across every one of her essays an interviews, is that she’s extremely astute about her career, and therefore decided to do it herself and go directly to the top. So she will release her NFT with Christie’s.

This story has a bit of everything, so I am sure that it will be talked about for weeks and weeks. Firstly there’s the powerful own words of Ratajkowski, framing this as a moral fight, and about re-appropriation of her image. Richard Prince has already been taken to court several times for copyright infringement in what ended up being landmark transformative use decisions, and in general one could say that he’s not well liked. On the other hand, Ratajkowski has managed to come out quite well from all of the abuses of her image, so this will likely be framed in that context. Young powerful woman versus ossified art troll.

I’ll make a wild prediction that this NFT will sell for a bucket-load of Ether, but I digress.

This brings me to the potential legal issues in this case. While I’m sure that there will be a lot of talk about re-appropriation, I don’t think there’s a lot of legal meat here. The auction hasn’t been listed yet, so we do not know the nature of the sale, but following previous NFT auctions from Christie’s, it’s likely that this will be just a straightforward metadata NFT sale, where the buyer is not buying the image, and is not even buying a digital copy of the image, but is buying “unique” metadata encoded with the image. Emily Ratajkowski owns the painting, and creating metadata from a picture would not infringe any possible copyright that Richard Prince may or may not have.

Moreover, Prince seems to be completely fine with people suing him for copyright infringement, there’s no such thing as bad publicity, and he seems to thrive on the attention generated by these suits. It would be surprising if he were to sue, and even if he did there’s likely no infringement at all taking place.

Which brings us to whether NFTs will become a weapon for the protection of image and personality rights. A very important element in Emily Ratajkowski’s essay from last year is the lack of control over her image, and there’s a hint in the NYT interview that she’s using the NFT auction as a manner of regaining moral control over her image, a way of trolling the troll. But from a legal perspective the NFT makes no claim of ownership over her image, it has no legal value whatsoever, so the re-appropriation talk will be misguided. She will make lots of money from this, more than she paid for the painting in the first place.

Moreover, I envisage an NFT war in which Prince will release his own NFTs, probably also at Christie’s. From a legal perspective nothing will change.

Finally, I have been struck by the emerging hierarchy in NFT selling venues. Ratajkowski mentions in her NYT interview that she looked at some venues such as OpenSea, and didn’t like what she found. It has become clear that Christie’s sits at the very top of the NFT food chain. Then there’s Nifty Gateway, another very exclusive venue which seems to be currently engaged in celebrity drops. Next down are other less exclusive platforms such as Rarible and OpenSea, with a bottom pile of other platforms such as Mintable and v.Cent. And somewhere in between there are specific vendors which concentrate in smaller collections.

What is clear is that this allegedly democratising technology seems to be recreating celebrity culture quite well. Celebrities get the attention and sell more, while most artists will will sell, but not at the exhorbitant prices we saw at the top of the hype. As more and more people join the NFT revolution, expect this market segregation to continue.

For a decentralised space, the NFT economy seems to be quite centralised all of a sudden.


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