In late August, a federal judge in Manhattan dismissed a copyright lawsuit against photographer Ryan McGinley in which photographer Janine Gordon claimed McGinley’s work relied too considerably on her own.  Gordon sued Mr. McGinley in July 2011, claiming that at least 150 of McGinley’s photographs were “substantially based” on her own and violated her copyright, and demanding that McGinley pay her $30,000 per instance of copyright infringement.  Gordon’s complaint alleges that the infringement began nearly ten years ago when both she and McGinley had exhibitions at the Whitney Museum of American Art.  During that time, Gordon claims McGinley’s proximity to Gordon’s work during the exhibition gave him “total and complete access to view and examine the Gordon images featured in the 2002 Whitney Biennial,” and subsequently provided the basic inspiration for McGinley’s later works.  McGinley responded that his and Gordon’s photographs “do not look alike in the slightest,” and argued that she is “really complaining that the images share the same fundamental idea.”  In building her infringement claim, Gordon gained the support of Dan Cameron, a former senior curator at the New Museum, who stated in court papers that he believed “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.”

In order to establish a copyright infringement claim, “a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s [work].” Hamil Am., Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999) (internal citation and quotation marks omitted).  McGinley’s defense motion alleges artists can have “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.”  McGinley has touched upon the most basic cornerstone of copyright law: Copyright protection subsists in original works of authorship “fixed in any tangible medium of expression.”

McGinley could have asserted a strong fair use defense to Gordon’s infringement claims.  The fair use defense is comprised of four prongs a court considers in determining whether a work has been improperly used: “the purpose and character of the use; the nature of the copyrighted work; the amount of that which was copied compared to the whole of the copyright work; and the effect of the use upon the potential market for or value of the copyrighted work.” Cases in which the fair use doctrine is invoked are largely unpredictable because no prong is accorded more weight than others, forcing the court to conduct a balancing test considering the totality of the circumstances.   Although McGinley’s works have in some ways effected the potential market value of Gordon’s works (McGinley’s works have sold for much higher prices than Gordon’s), there is no way to definitively determine that the same customers are buying McGinley’s photographs instead of Gordon’s, or that the allegedly similar elements of the photographs are the reason for the customer’s preference.  Additionally, McGinley did have access to Gordon’s photographs, but the court did not find that McGinley had copied the “protectable elements” of Gordon’s works.

Judge Richard J. Sullivan noted in his opinion that “the standard test for substantial similarity between two items is whether an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001) (quoting Hamil Am., 193 F.3d at 100).  Judge Sullivan further explained that when there are both protectable and unprotectable elements, for example, fixed expressions versus broader themes or ideas, the district court “must attempt to extract the unprotectable elements from [its] consideration and ask whether the protectable elements, standing alone, are substantially similar.” Knitwaves, 71 F.3d at 1002 (emphasis omitted).  The court found that there was no “substantial similarity” between Gordon and McGinley’s work and that the generic themes Gordon cited as the basis for her infringement claims were not subject to copyright protection because they were not fixed forms of expression.

This is not a surprising result, since artists have focused on active youths, outsiders and nudity as artistic subjects since the beginning of time.  McGinley is most well-known for his portrayals of men and women the New York Times called, “a lush vision of youth culture.”  McGinley’s figures are featured in extreme positions, some of which are the result of McGinley capturing an intense moment in reality, and some of which are the product of McGinley’s construction of a not quite possible universe in which his figures fly, swim, or simply exult in nature.  Janine Gordon, who is known as Jah Jah and is also a musician and multimedia artist, is famous for photographing the underground hip hop scene during the ‘90s and focusing on “risk-taking & thrill-seeking in various sub-cultural factions in society.”  Unfortunately for Gordon, such themes are archetypal subjects of artistic expression and cannot be claimed as a unique “fixed tangible medium of expression,” despite some compositional similarities between her work and McGinley’s.  Gordon will have to share her ravers, ramblers, and raucous figures with other photographers who choose to focus on such common themes.

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