Part of Richard Prince Lawsuit Is Tossed Out, Giving Gagosian Gallery a Small Win

A New York court has dismissed one claim against Gagosian in a years-long legal drama surrounding a Richard Prince photograph, yielding a small victory for the mega-gallery as the case continues on.

The suit was first filed in 2015 by the photographer Donald Graham, who claimed that Prince had infringed on his copyright by using his photographs in works presented at Gagosian the year before.

The Graham work at the center of the lawsuit, Untitled (Portrait of Rastajay92), shows a crouched-over man smoking a joint. Prince’s take on it features that same image in the form of a screenshot of an Instagram post containing it, along with all the comments and likes that accompanied the image.

After that work was included in a 2014 show called “New Portraits” at Gagosian, Graham filed a cease-and-desist order against Prince. Other Prince works in the exhibition were publicly decried by the people represented, with their subjects claiming that he had not sought their permission before using their images.

Untitled (Portrait of Rastajay92) had not sold since Gagosian first purchased it, and Judge Sidney H. Stein’s decision rested on “indirect and unrealized profits,” or money that the gallery would have brought in, had the work found a buyer. He said that there was not enough evidence that those potential profits were “connected to the alleged infringement and [were] overly speculative.”

Whether Prince infringed on Graham’s copyright is still undecided. Much of Graham’s suit is still pending.

Prince, an artist well-known for appropriating others’ photographic material in his own work, has previously faced other lawsuits, most notably one in 2011 brought by the photographer Patrick Cariou over allegations of copyright infringement. The case ended in a settlement in 2014.