Since late last month, April 25 in fact, I have been periodically researching the topic of NFTs or “nonfungible tokens“. The damn things were back in the news yesterday when a digital-only photograph of supermodel Emily Ratajkowski standing in front of a photograph of herself with a smaller, different photograph of herself in the corner sold at auction at Christie’s for $140,000 ($175,000 after fees). Here’s Yahoo!’s description:
“It’s not that the photo can be seen only by the buyer or even that the buyer can physically mount it in a frame (though one supposes the buyer could project it on a wall or screen and put a frame around the projection); it’s that the equivalent of the certificate verifying the authenticity of the digital file of the main photo is unique. It’s really the certificate that cannot be replaced exactly by a copy….NFTs have recently enjoyed a heyday. Nonfungible.com, which tracks such sales, shows massive spikes through the first quarter of 2021 over the last quarter of 2020, with sales volume reportedly in the range of $2 billion already this year.“
Right. I can read that over and over, and it still makes no sense. As far as I can tell, these are like digital tulip bulbs from the Dutch tulip craze crossed with cyber-currency, and people who have so much money they don’t know what to do with it are buying what amounts to metadata as investments. But I may be completely wrong. I eventually gave up on trying to understand NFTs when my sock drawer started looking taking to me.
There is are underlying ethics issues, however. Ratajkowski created her NFT in part to troll Richard Prince, a photographer who has exploited the blurry ethics and copyright laws involving photography to make a lot of money and to infuriate many people, especially celebrities like Ratajkowski. Prince is the master of the digital age of Appropriation Art. When Andy Warhol essentially copied the design of a Campbell’s Tomato Soup can and made millions from it, that was the beginning of the trail of metaphorical bread crumbs that led to Prince. Thousands of photographs are placed online every day and appear all over the web, to be copied and re-used in on Pinterest, Instagram, Facebook and many other cyber-spaces. It is often impossible to track down the original photograph or its source even if one wants to give it attribution or ask permission to use it from the creator—this is something I do know something about, as I deal with it every day. Taking an individual’s image, however, treating it as one’s own and selling it is widely regarded a breach of photography ethics, and arguably a breach of law. “Fine Art,” however, creates a large loophole, and in the loophole dwells the much despised Richard Prince.
In 2000, French photographer Patrick Cariou published a book, “Yes Rasta,” featuring his vivid photographs of Rastafarians. Richard Prince then used the photos in a series of 30 artworks for his show, “Canal Zone”, at New York’s prestigious Gargosian Gallery. Cariou sued Prince for copyright infringement, and US District Judge Deborah Batts ruled that Prince had indeed taken and converted Cariou’s property. Her decision was overturned, however, when the Second Circuit ruled that Prince’s artwork could be considered “transformative” and fair use.
Next, Prince moved on to digital sources. He created an exhibit based on photographs he found on Instagram, blowing up photos and selfies, adding some of the comments, and appending his own comment. Prince sold some of these pieces for as much as $100,000, because he “made” them. In defending against the resulting lawsuits, Prince argued that keeping the Instagram photos untouched is essential to the purpose of his exhibit, which he said was an “ode to social media.” He won again on the Fair Use issue. As usual, the court did not rule based on ethics.
One of the Instagram accounts, Suicide Girls, whose posted photos were prominently featured in Prince’s New Portrait exhibition, struck back by re-appropriating Prince’s appropriation. They duplicated what Prince had done, then adding their own comment below Prince’s. That “artwork” sold too, but only at a fraction of what Prince’s works do: after all, he’s a famous artist. Prince, showing integrity at least, approved of their response, and called it “smart.”
Enter Ratajkowski. Her image, taken off of her social media accounts, have been used by Prince many times. “As somebody who has built a career off of sharing my image, so many times — even though that’s my livelihood — it’s taken from me and then somebody else profits off of,” Ratajkowski told The New York Times. Her NFT, titled “Buying Myself Back: A Model for Redistribution,” is intended to let Ratajkowski profit “directly, continually, and significantly” off of works containing her image. Will it work? Nobody knows. Prince won’t sue her, presumably.
That would be hypocritical.
The composite artwork she sold in her NFT contains a photo of Ratajkowski in her apartment, and a digital copy of a whatever it is by Richard Prince. Ratajkowski owns a physical copy of Prince’s artwork, but she may not not own rights to digitally reproduce it. Richard Prince’s thing is a print of an Instagram post by the supermodel (you knew she was a model, right?), which featured a photo of Ratajkowski taken for Sports Illustrated, as well as a selfie and comments written by other viewers of the photo. Prince didn’t seek permission to use any of this.
Rather than sue Prince when so many others have failed, Ratajkowski decided to give him a dose of his own medicine, as the saying goes, transforming his transformation of her, and reselling it as an NFT. Ethically, this is interesting because “tit for tat” is generally considered unethical. One exception is war. However, until I understand exactly what it is she sold, I can’t be certain that her tactic is tit for tat. If the NFT was the only way she could reclaim ownership of her own image (or part of it), it can’t be unethical.