The latest art star to have his work implicated in a copyright case—after Jeff Koons and Richard Prince earlier this year—is naked hipster photographer Ryan McGinley, who’s been accused by fellow New York-based photographer Janine Gordon of stealing her imagery in both his art photos and in a series he did for Levi’s, whom Gordon is also suing.
Artnet’s Rachel Corbett reports that the suit was filed with the U.S. District Court for the Southern District of New York and argues that 150 works by McGinley, including several used in the jeans giant’s “Go Forth” campaign, take liberally from Gordon’s work. The alleged theft began nearly a decade ago, when both artists showed at the Whitney: Gordon in the 2002 Whitney Biennial, McGinley in his major 2003 solo show The Kids Are Alright.
Though the lawsuit alludes to some dubious evidence, like McGinley’s reaction when he ran into Gordon at a 2003 opening reception at PS1, some of the photos (like the two above) do seem strikingly similar. Similarities between other images cited, like the two below, seem much less compelling grounds for a lawsuit.
Also named as co-defendants in the case are Ratio 3 gallery in San Francisco—where both artists have shown simultaneously—Peter Hay Halpert Fine Arts and Team Gallery, both of which show McGinley’s photos. However uneven the case may seem, Gordon enlisted the support of former New Museum curator Dan Cameron, who writes in an affidavit:
My long-term expertise as a critic and curator gives me, I believe, sufficient authority to say, without hesitation, that Ms. Gordon’s work is completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations
Meanwhile, a motion filed by the defendants’ lawyers on behalf of McGinley alleges that Gordon
has no claim to ideas as general and unprotectable as, for example, an interracial couple kissing; a person gazing skyward with outstretched arms; or a man riding on a spotted horse.
Gordon is seeking $30,000 per offending artwork, of which 150 are listed in the suit, so that’s… $4.5 million. Expect more on this soon. In the meantime, remember when McGinley photographed the winter Olympics?
This is a nonsense copyright lawsuit. As the defence lawyer points out, you cannot copyright an idea, only its expression. The question then becomes whether the idea of shooting somebody jumping in the air with arms flailing in black and white or shooting an image cropped low in the frame against a blue sky is so unique that its can only be reasonably inferred as copying from the original photo.
In both cases the photos are sufficiently different that on the balance of probabilities the second image more likely stems from the same general idea, but not the image. Anyone who jumps in the air is going to flail their arms so there is nothing really original there. The second set of images is so far apart that the accusation its copyright infringement just undermines the other claims. She has to prove they were copied in too many dimensions from the originals – but here’s sufficient differences in the skill and judgment in creating the second set of images that make the images unique from the original ones.
If the second photographer copied or took inspiration from the idea of taking a pic against a blue background or somebody jumping in the air, that’s not actionable under copyright – their final expression of the idea is different enough in each case. That the cost of making art – you might inspire others to make their own similar art, but that is not necessarily copyright infringement. In this case, the facts – the compared images – just don’t look close to identical enough to support a reasonable inference that the second image is derived only or sufficiently from the first one. They are different enough expressions of a similar idea.
You can’t use copyright law to make people pay you for better execution of an idea you once had – even if the second set got a nice corporate gig, the first did not. Copyright is not a broad market monopoly tool and all art is derivative from common ideas and cultural cues. Cases like this are worth defending on principle since its a misuse of copyright law – what they really want is to prevent others exploiting and profiting from a concept/idea they hoped to claim as their own: that’s beyond the bounds of legal IP rights fenceposts and remains in the realm of the conceptual commons.
uo3L
SEU THIS Janine
http://kodilane.tumblr.com/post/7634081137…
This poor girl has burned all of her bridges and is now trying to blame everyone around her. Her once flourishing career is now over because she is too crazy to work with. You never know what kind of embarrassing scene she will cause next. It is consistent and people are literally repelled by her. Ryan did not copy her and it seems as if everyone else she has contacted to help her “prove” that he ripped her off has handed over and made the crazy emails she sent them public. That says something serious about her working relationships. Ryan will laugh about this years from now, but I would be furious if I was him or Chris Perez. She looks like a clown and refuses to apologize, so I guess she had made her bed and now has to lie in it and she has only herself to blame. What a BI***!