Inspiration or Infringement: Gordon v McGinley

This July, NY photographer Janine Gordon filed a lawsuit against another NY photographer, Ryan McGinley, for copyright infringement. Her suit alleged that the copyright in 150 of her photographs had been infringed, and she demanded $30,000 in statutory damages per instance of copyright infringement.

New York is a big city, but the art world is small. According to Artnet, Gordon can trace the infringement back to when both artists exhibited at the Whitney Museum of Art. Since then, McGinley has been at a number of the same galleries. “This is an art world travesty, when artists can freely steal from another artist for 10 years and be praised, paid and dance in the sun all day,” Gordon said.

According to the New York Times, Gordon called upon a former senior curator of the New Museum to tell the court he believed her works to be “completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations.” Nice, but his statements speak only to the ideas employed by Gordon, and they do not address the full legal test of copyright infringement. McGinley responded that Gordon failed to make a copyright infringement claim, and that she was “really complaining that the images share the same fundamental idea.” It is the expression, and not the idea, that is protected by copyright law.

As Randy Kennedy at The New York Times put it, “Gordon is now accusing [McGinley] of relying too heavily on her work for his inspiration.” Looking to other artists for inspiration is not a crime, but is perhaps an important practice for the art world.

Techdirt posted the exhibits that compared the two photographers’ works side by side and found them lacking in similarity. Judge Richard J Sullivan, of the US District Court of the Southern District in NY, also found them lacking in similarity and dismissed Gordon’s suit on Thursday. “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.”

The full text of the decision is available at the New York Times.

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