August 22nd, 2011

Judge Dismisses Copyright Suit Against Ryan McGinley as “Wasteful”

© Levi's/photo by Ryan McGinley

A federal district court judge has dismissed photographer Janine Gordon’s suit against photographer Ryan McGinley, and also offered a useful refresher course on the basics of copyright law.

In June, Gordon sued McGinley and his galleries, alleging that the artist had copied both her style and her subject matter in his art shows and his advertising work for Levi’s Go Forth campaign. As evidence, she submitted 150 of her images and McGinley’s featuring the same subjects, including a man jumping with his arms outstretched, a black man and a white woman kissing, and a woman’s nude torso.

After reviewing the images,  Judge Richard Sullivan for the Southern District of New York ruled in a decision released Thursday that “there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley.” While both artists photographed similar subjects, copyright law protects only the expression of an idea – not the idea itself. Gordon’s “apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude torso,” the judge wrote. “Such a conception of copyright law has no basis in statute, case law, or common sense.”

PDN often hears from photographers complaining that their work has been ripped off by another photographer. Judge Sullivan’s opinion in Gordon v. McGinley highlights how difficult it is for copycat claims to meet the law’s standards for infringement. Quoting an earlier ruling by the Second Circuit, he notes, “Not all copying results in copyright infringement.”

The judge added a few scathing words for Gordon and her lawyers. “One might have hoped that [plaintiff's] attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.”

PDFs of the full opinion are available. Tech Dirt’s article on the case has a link.