Photography Ethics, Richard Prince And NFTs, Whatever The Hell They Are

NFT big

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.

Can it?

10 thoughts on “Photography Ethics, Richard Prince And NFTs, Whatever The Hell They Are

  1. As far as I can tell, NFT is basically a digital certificate of authenticity. You can have a duplicate of moba Lisa, and it might even look like the Mona Lisa exactly but… it’s worth $50. This would be like selling a replica antique vs the real deal, if it was digital. I think it’s good for commerce. Digital creations take time too and it’s tricky to get compensated for art, even more challenging for digital art.

  2. As far as I can tell, the comparison to the tulip bulbs is also apt. An artist sells a limited edition license to display a piece of art. The art is usually digital, but not always. The blockchain NFT verifies that the displayer bought the license, and nothing else. That people are attaching arbitrary value to NTF’s regardless of the underlying nature of the work opens this bubble to burst.

    The license implied by the NFT does not guarantee in anyway that the seller had the proper rights to issue the license. It only tracks who issued the license, who bought the license, and who currently holds the license. The actual piece of art can be copied freely, but those with copies would not be able to show they have an authorized copy.

    The comely Ratajkowski created her derivative work based on Prince’s work, and then sold a fixed number of licenses for her modified work. The NTP is basically irrelevant the ethical analysis of what she did. She copied Prince’s work, modified it slightly, and then sold a fixed number of limited edition copies. Anyone could then further make a copy of her work. Whether the copies are legal or ethical is a different question from whether the copies could be made. NTP has no bearing on the legal or ethical nature of the copies.

  3. NFTs seem to be the equivalent of selling bottles of sunlight. I think the people buying them have more money than sense, and it is some sort of status symbol.

    Social media is a cancer that destroys anything that is hooked into it. Copyright law is just one of its victims. Fair use has been twisted into an unrecognizable mess by social media. Things that ought to count as fair use, like reviews of movies, get yanked off YouTube or demonitized on a regular basis, while outright theft is now considered fair use. It makes no sense.

  4. Hard to write anything about Ms. Ratajkowski without deploying the phrase “tit for tat.” I has assumed the post was going to be about young ladies who make a living off their God given and transitory beauty and the example that sets for girls and young women. And the light it sheds of “feminists.” Silly me.

  5. What people talking about NFT’s seem to be missing is that the entire tradeable market is completely untethered from actual value, and the value of collectables is what people attribute to them.

    I’m an unrepentant geek, and I play Magic The Gathering. Colloquially known as cardboard crack. I own pieces of painted cardboard that people would pay upwards of $1000 for. The mana base in my commander deck is valued around $5000. Nothing inherent in those 40 pieces of cardboard should equate to the value of a used vehicle, and yet… There it is.

    More, The card in and of itself doesn’t have value unless I can prove they are authentic. I could take my cards, and I could reproduce them, counterfeit them, I could take high quality pictures of them, and take them to a local print shop. They still wouldn’t have value (unless I could convince someone they were legit) because their value is in part derived from their scarcity. Now, each one of my cards won’t have a certificate of authenticity, so if I went to sold them, I’d probably have to use a professional appraiser as an intermediary.

    It doesn’t surprise me that these tokens carry value. People decide all sorts of things carry value. What I don’t understand is what would prevent a person from creating multiple tokens for an NFT. With cards, there’s a limited print run, and that preserves scarcity. There’s the possibility the cards get reprinted, but they’re reprinted with different borders or set symbols. With NFT’s… It seems like a tokener could take a $100,000 NFT, serialize the bejesus out of it, and laugh all the way to the bank until people stopped paying for it. LIke I said, I’m not an expert on NFT’s, but I know collectibles, and if there’s something in place to prevent that from happening, and whatever that device is preserves scarcity…. Then this is just as real as any other collectible.

    • Instead of Magic cards, I’ve dabbled in numismatics. You learn very quickly some principles of economics with collecting artifacts. If you don’t know the term, this hobby is also known as ‘coin collecting’.

      A coin has three typical values attached to it:
      1. Face value
      2. “Melt” value, or what some economists would label as intrinsic value.
      3. Its numismatic value, or market value in the context of collectors.

      To explain some of these differences, look at your pocket change. If you pull out two pennies and buy a hypothetical good from the store, you’ll get exactly two cents worth from the shopkeep.

      If you bring the same to the scrapyard, he’ll give about a nickel for the penny minted before 1982 and kick you out for trying to pull a scam with the newer one made of plated zinc instead of copper.

      Bring the coppers to a collector auction house, and if they have the number ‘1943’ stamped, you’ll walk away with nearly half a million dollars.

      Most of the time, a coin’s value is a function of melt value, plus rarity, which also involves condition and age. An interesting oddity in the market appears around gold coins–no matter the condition or rarity, they typically remain pegged near their melt value. This is because the intrinsic value prices the coin beyond most collector’s budget.

      Like with cars, the individual parts of a collection are worth more than the whole. Nobody wants to buy a complete collection to fill the empty spaces in their coin book, just like they won’t buy a new Dodge to replace the busted blower motor resistor in their car.

      NFTs are simply a tokenization of value, just like a coin, and to understand them you need a bit more context.
      1. People became millionaires by being early in the digital currency gold rush.
      1. Digital currency is becoming less favored because its tokens, requiring electricity to “mine” and maintain aren’t perceived as being good for the environment.
      2. A token doesn’t really need processor time to be generated, you have people posting pictures of cats all the time.
      3. Let’s sell tokens generated by putting cat pictures in the meat grinder instead of processor time.

      Put those together and there you have the resulting tulip rush.

      • 2. A token doesn’t really need processor time to be generated,

        The NTP actually does. It is basically a Bitcoin, but its has someone’s name, a description of the item, the date it was issued, and a list of subsequent owners. Changing owners invokes a worldwide network of computers. The new owner is recorded on every computer in the network. The file structure is such as names can only be appended to an existing token. New tokens can be created and sent out to the blockchain network. Once in the network, however, it becomes prohibitively difficult to delete or edit other than change owner.

    • Mass issuing a valuable NPT is no different than mass producing a previously rare card. The NPT, however, is 100% traceable. If issued originally as a part of a fixed run, the NTP would prove it was part of the original run. Any future tokens would have an indelible later date, and thus would not be an authentic part of the originalind run. Otherwise identical tokens might still dilute the value, but taken runs of a certain date cannot be forged in the future.

  6. In current form, NFTs have only whatever value collectors ascribe to them. The technology itself, however, has potential for some interesting future developments.

    It could be used for licensing content – imagine a file format that will only be decoded and opened by software if you are the verified owner of a token that gives you license to use the file. Since the license exists on a blockchain, it is essentially impossible to counterfeit. It could also be transferable, which could make purchasing of digital content more attractive, as it would create a potential secondary market to sell the content, like a digital used bookstore.

    More interesting, though, is the concept of coupling the NFT with cryptocurrency and a “smart contract” – essentially, the creator could attach a permanent royalty fee to the license, so that if it is sold or transferred to another owner, the creator would automatically receive a payment. This would happen as part of the transfer of ownership on the blockchain, and wouldn’t rely on the buyer or seller to honor the contract.

    Imagine a film or book that is licensed in this way, and sold in a limited edition. Only a limited number of licenses are issued, but the licenses can be sold. When they are, the creator gets a cut of the sale price. This could potentially create a new economic model for content creators. Heck, you could use pre-sales of the licenses to crowdsource funding of the project.

    There is some very intriguing potential to this technology, but I agree that in its current incarnation, it doesn’t serve much of a practical purpose beyond being a digital authenticity certificate.

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