Did Ryan McGinley rip off fellow photographer Janine Gordon, as she claimed in a lawsuit filed last month? Maybe, a judge said yesterday, but that’s a question best left to the art critics. Did McGinley infringe on her copyright? Not at all, read the detailed decision from Judge Richard Sullivan of the U.S. District Court for the Southern District of New York. “The dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity” between the two artists’ works, he said.
In the decision, the judge analyzed a few of the 150 images Gordon, who also goes by the name Jah Jah, submitted as evidence of infringement. In one comparison, two photographs by McGinley and Gordon each featured a young man suspended in the sky with outstretched arms. The judge broke down the composition, pointing out that Gordon’s was in black and white, vertically oriented and featured a model in tennis shoes, while McGinley’s was full-color, horizontal and the model, who was barefoot, wore a different style of clothing.
The judge went further to argue that there was an “utter lack of similarity” between the photographs’ “total concept and overall feel.” Gordon’s model was “muscular and taut,” displaying a “gesture of virile triumph,” which set a mood distinct from McGinley’s slim, “dreamy” model who’s merely “surrendering to gravity.”
“I’m delighted that justice was served,” McGinley’s lawyer, Jack Gordon, told artnet Magazine. “The judge did a nice job formatting his decision; he embedded images, he didn’t just type something up in Courier font.” Nicole Hyland, attorney for co-defendant Chris Perez and Ratio 3 gallery, said in a statement that the decision was “a victory not only for artistic expression, but for the legal system as well.”
Janine Gordon declined to comment, and her attorneys did not immediately respond to requests for interviews.
Gordon was not without her supporters, however. One of her more prominent backers was former New Museum curator Dan Cameron, who wrote in an affidavit 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.” Yet the judge said expert opinion was beside the point -- cases determining artistic similarity must be left to lay observers. “Despite the prestigious credentials of the artists and aficionados who have rallied to Plaintiff’s side, their testimony bears no relevance,” he wrote.
The judge noted that “not all copying results in copyright infringement,” and added that Janine Gordon’s “apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso.”
Attorneys for the defendants say they are considering motions to recoup legal fees, which McGinley’s lawyers estimate is collectively “well north of a $100,000.” Also at issue is whether to seek damages for alleged physical threats Gordon made to McGinley. McGinley’s lawyer said they are “seriously considering” it, but added that “sometimes you don’t want to stir things up.”
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from the nicely-done dept
By Mike Masnick Fri, Aug 19th 2011 5:30pm
A few weeks ago, we wrote about a ridiculous lawsuit from photographer Janine Gordon against fellow photographer Ryan McGinley. Gordon claimed copyright infringement, despite the photos not really being very similar at all. Here are a few examples [..]
Thankfully, a judge has wasted little time in getting rid of this lawsuit and making it clear that the whole thing was pretty stupid, noting that basic common sense says that this is not copyright infringement:
In this case, the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley. Although the Court declines to conduct an exhaustive inventory of the 150 allegedly infringing images, a representative sample illustrates and confirms this result.
From there, the judge picks a few of the images, and notes just how different they are. For example, he compares these two images:
According to Gordon, this was "the most blatant" of the infringing images. The court doesn't buy it. After noting that, indeed, both images show men suspended in front of a cloudy sky with a bent arm, it goes on to point out:
But there the similarity ends. The Gordon Image is black and white and vertical, while the McGinley Image is in full color and horizontal. The Gordon figure is clothed in a short-sleeve T-shirt, dark pants, and tennis shoes; his hair is closely shorn. The McGinley figure is clothed in a longsleeve shirt and shorts and is barefoot; his hair is medium-length. Plaintiff attempts to obscure these “peripheral” differences by cropping and rotating the Gordon Image and converting the McGinley image to black and white. (Pl.’s Opp’n 18.) But not even these alterations can reconcile the “total concept and overall feel” of the two images. The Gordon figure is muscular and taut, with not one but both arms splayed in a gesture of virile triumph. The look on his face is intent, perhaps even defiant. The McGinley figure is slender and his posture relaxed, with both legs floating apart rather than clenched together. His head drapes to one shoulder and a dreamy look inhabits his face as he falls through the frame. Thus, the overall feel of the McGinley Image is that of a passive figure simply surrendering to gravity, while the overall feel of the Gordon Image derives from a dynamic figure jumping into the frame. No dissection of the images is required to discern the “utter lack of similarity” between the two.
Later, the judge notes that Gordon repeatedly "alters" images to try to make her infringement case stronger, and also notes that she has a "penchant for strained image descriptions."
The judge also berates Gordon for relying on a battery of "experts" who even admit they don't know much about copyright law:
Moreover, the substance of the expert affidavits simply underscores the infirmity of Plaintiff’s infringement claim. Several experts profess a belief that Plaintiff should prevail in this action while disavowing any familiarity with copyright law. (See Pl.’s Opp’n, Ex. B, Aff. of Dan Cameron, June 27, 2011, ¶ 4 (“I do not pretend to understand all the legal complexities of Ms. Gordon’s case”); id., Ex. F, Aff. of Volker Diehl, June 29, 2011, ¶ 9 (“I am unfamiliar with laws surrounding this issue, in particular the laws of the United States as it pertains to such causes of action”).) Another opines on the contours of “fine art ethics” (id., Ex. D, Aff. of Heather Holden, June 24, 2011, ¶ 12) and acknowledges that art expertise “may be needed” to discern the relationship between the images at issue (id., Ex. D., Holden Aff., ¶ 11). What is clear from the foregoing expert testimony is not that Plaintiff should prevail in this action, but that the remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court.
Finally, after repeating, once again, that "good eyes and common sense" say there's no infringement, the court also points out that "not all copying results in copyright infringement" and that: