Appropriation artist Richard Prince used an image taken by photographer Donald Graham to create a work as part of his New Portrait series displayed and sold at Gagosian Gallery in New York City and Blum & Poe in Tokyo. 

Graham's Rastafarian Smoking a Joint was initially published in 1998 and has sold multiple print copies, as well as featured on Graham's website and Facebook page. Instagram account Rastajay92 posted Rastafarian Smoking a Joint on Instagram to which Prince added a comment and then took a screenshot to create Portrait of Rastajay92. Portrait of Rastajay92 was exhibited at the Gagosian Gallery and featured in a gallery pamphlet and a billboard displaying images of the exhibition. Prince also used Graham's image in a tweet. Graham sued both Prince, Gagosian Gallery, and Laurence Gagosian (the controlling shareholder of Gagosian Gallery and purchaser of Portrait of Rastajay92) for copyright infringement. 

Prince filed a motion for summary judgment that the Gagosian defendants joined. The plaintiff requested summary judgment on the fair use issue. In light of the "parallel" facts and argument of both cases, the Southern District of New York analyzed Prince's fair use defense in this case and in McNatt v. Prince simultaneously and found that the balance of factors strongly favors against fair use and denied defendants’ motions for summary judgment. On the first factor, the court found that Prince's use of both images was not transformative as a matter of law and such use was "undisputedly commercial." In deciding whether the work's were transformative based on their "aesthetics and character," the court found that the Prince's changes to the images, namely enlarging, cropping, and adding an Instagram border and comments, are not sufficiently transformative because "the images remain unobstructed, unaltered but for being cropped, and unquestionably dominant." Rejecting defendants' contention that the reasonable observer has both a "general interest in, and appreciation of" art as without merit, the court found "a reasonable observer would likely identify Prince's alterations as (1) adding the Instagram frame and (2) showcasing his own comments."

The court found the works' artistic purpose similarly deficient to support a finding of transformative use. Notwithstanding Prince's “inconsistent” description of his artistic purposes in his deposition testimony compared to his declaration, even if the court accepted that Prince’s works differed from the original images because his portraits are a critique of social media culture, such artistic intentions do not rise to the level of a satire or a parody of the original image. Prince himself admitted that for Portrait of Rastajay92, “he could have used any number of other photographs to feature in his series” demonstrating that the original image itself is not being commented on. 

The parties came to a settlement agreement memorialized in final judgments from the court. The final judgments find in favor of the plaintiffs, enjoin all defendants from selling, reproducing, or otherwise distributing the portraits and ancillary works (though do not require destruction), and order damages in the amount of five times the portraits’ prices.

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