Is Talking About The Beatles As A Wonderful 'Shared Experience' Really Wise In An Anti-Piracy PSA?

Judge Slams Photographer For Bogus Copyright Lawsuit: Says Use Some Common Sense, Points Out 'Utter Lack Of Similarity'

from the nicely-done dept

Fri, Aug 19th 2011 5:30pm — Mike Masnick

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:

Plaintiff's apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression.

Additionally, the court is somewhat shocked that an artist would make such claims, and finds it even more ridiculous that her lawyers agreed to go forward with it:

One might have hoped that Plaintiff - an artist - would have understood as much, or that her 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.

It's a nice clean ruling. It's just too bad the court had to waste time with it at all.

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Filed Under: copyright, janine gordon, photography, ryan mcginley

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The Anti-Jurist, 19 Aug 2011 @ 5:52pm

Lawyers Suck!
Just proves once again that there are way too many lawyers around that that most of them SUCK!
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- Anonymous Coward, 19 Aug 2011 @ 7:19pm
  
  Re: Lawyers Suck!
  Abolish Laywers!!!! :)
  
  Abolish IP!!!!
  
  Abolish the FCC!!!!! (for passing laws that effectively keep us ignorant).
  [ link to this | view in chronology ]
- Anonymous Coward, 22 Aug 2011 @ 11:24am
  
  Re: Lawyers Suck!
  Lol.
  
  This single case PROVES that MOST lawyers suck!
  
  With logic like that, you'd better hope there's a decent lawyer around to make a coherent argument for you if you ever need to do so.
  [ link to this | view in chronology ]
Jeffrey Nonken (profile), 19 Aug 2011 @ 6:05pm

What copyright means
IANAL but it seems to me that copyright means that I can't take her picture and duplicate it (with some exceptions that aren't relevant to my argument).

What it does not mean is that I can't take a picture like hers. I don't care if the composition is identical. I took the picture, not she.

If it does, we're all screwed, the lot of us.
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- DandonTRJ (profile), 19 Aug 2011 @ 6:37pm
  
  Re: What copyright means
  You can take a picture that's identical to hers, so long as you didn't see hers first. And even if you did see hers first, you're fine if your photo doesn't replicate enough of the copyrightable aspects in hers to count as infringing; things like pose, framing, angle, lighting, and of course the content itself. Enough elements of the original photo must be copyrightable that replication of those elements is copyright infringement [and again, such replication must have been done with access to the original]. Considering how basic the similarities in these photos are [and how different they are otherwise], the plaintiff never had a chance, and it's pretty shocking that any lawyer agreed to take it on.
  [ link to this | view in chronology ]
  - ChurchHatesTucker (profile), 19 Aug 2011 @ 6:49pm
    
    Re: Re: What copyright means
    I'm actually disturbed by "But there the similarity ends.."
    
    Does that mean that similarity is potentially infringing? Either it's an exact duplicate or it isn't.
    
    Still, I'm always amused that photogs, who by definition are carrying around copy machines to do their work, are always so upset when their work is 'copied.'
    [ link to this | view in chronology ]
    - DandonTRJ (profile), 19 Aug 2011 @ 8:23pm
      
      Re: Re: Re: What copyright means
      Yes, similarity is potentially infringing. That's why the threshold for infringement is not "virtual identity," but rather "substantial similarity." For example, in Gross v. Seligman, an artist was found to have essentially infringed against his own photograph. He took a picture of a girl, sold the rights in that photo, then later took another picture of the girl in the same pose and style as the original, albeit older (and I believe with the addition of a cherry stem in her teeth). The court held as follows:
      
      The identity of the artist and the many close identities of pose, light, and shade, etc., indicate very strongly that the first picture was used to produce the second. Whether the model in the second case was posed, and light and shade, etc., arranged with a copy of the first photograph physically present before the artist's eyes, or whether his mental reproduction of the exact combination he had already once effected was so clear and vivid that he did not need the physical reproduction of it, seems to us immaterial. The one thing, viz., the exercise of artistic talent, which made the first photographic picture a subject of copyright, has been used not to produce another picture, but to duplicate the original.
      
      It helps to remember that copyright protects artistic creations; that is to say, things that originate with the author. When the copyrightability of photographs was first being debated, people asked themselves, what in a photograph does an artist create? He's merely capturing reality that has been created independently of himself. But in , the Supreme Court finally explained what the artist "creates" in a photograph: rendition of the scene, from selecting wardrobes to posing subjects to arranging backdrops to framing the shot's angle, cropping, light and shadow, etc. Theoretically, those elements can work together to create a copyrightable whole, which can be infringed without duplicating the exact photo. And, as always, a court's challenge is to draw a line between what selection of elements is concrete enough to be copyrightable, depending on how closely they're copied from one photograph to another (and, of course, how unique the elements are -- typical or stock elements that appear frequently in the medium are dismissed as non-copyrightable).
      [ link to this | view in chronology ]
      - DandonTRJ (profile), 19 Aug 2011 @ 8:25pm
        
        Re: Re: Re: Re: What copyright means
        Damnit. I need to start previewing my comments more frequently before I hit the Submit button. Let me fix that last paragraph:
        
        It helps to remember that copyright protects artistic creations; that is to say, things that originate with the author. When the copyrightability of photographs was first being debated, people asked themselves, what in a photograph does an artist create? He's merely capturing reality that has been created independently of himself. But in Burrow-Giles v. Sarony, the Supreme Court finally explained what the artist "creates" in a photograph: rendition of the scene, from selecting wardrobes to posing subjects to arranging backdrops to framing the shot's angle, cropping, light and shadow, etc. Theoretically, those elements can work together to create a copyrightable whole, which can be infringed without duplicating the exact photo. And, as always, a court's challenge is to draw a line between what selection of elements is concrete enough to be copyrightable, depending on how closely they're copied from one photograph to another (and, of course, how unique the elements are -- typical or stock elements that appear frequently in the medium are dismissed as non-copyrightable).
        [ link to this | view in chronology ]
      - Anonymous Coward, 20 Aug 2011 @ 8:14am
        
        Re: Re: Re: Re: What copyright means
        (and, of course, how unique the elements are -- typical or stock elements that appear frequently in the medium are dismissed as non-copyrightable).
        
        What, like people and buildings you mean? Yes I see. I've noticed the number of times there haven't been lawsuits over people or buildings in pictures.
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 3:18pm
        
        Re: Re: Re: Re: Re: What copyright means
        I think you would benefit from reading Learned Hand's abstraction test to better understand at what level of generality or specificity something becomes copyrightable. See Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930).
        [ link to this | view in chronology ]
    - Anonymous Coward, 22 Aug 2011 @ 11:25am
      
      Re: Re: Re: What copyright means
      Doesn't have to be an exact duplicate to be infringing.
      [ link to this | view in chronology ]
  - btrussell (profile), 19 Aug 2011 @ 6:51pm
    
    Re: Re: What copyright means
    Can't always blame the lawyers.
    
    I suspect she said something along the lines of:
    "If you can't/won't take this case, I will find someone who can/will."
    
    In other words, "If you won't take my money, I am sure I can find someone who will."
    
    Similar pose? I can only move so many ways. Quick, someone copyright bending over backwards so the rest of quit having to.
    
    Copyright is absolutely ridiculous. Soon it will be infringing to "walk the walk" or "talk the talk."
    Can I say that?
    [ link to this | view in chronology ]
    - mojo, 19 Aug 2011 @ 8:19pm
      
      Re: Re: Re: What copyright means
      Copyright is ridiculous? Do you really think we should live in a world with absolutely no legal recourse for the out and out stealing or duplication of original, creative works?
      
      Abuse of copyright or frivilous lawsuits like this are ridiculous and should not only be stopped but punnished (the woman who brought the suit in this case should be forced to pay court costs) but to say the concept of copyright is ridiculous is... well, ridiculous.
      [ link to this | view in chronology ]
      - Bengie, 19 Aug 2011 @ 9:04pm
        
        Re: Re: Re: Re: What copyright means
        this has been discussed and studies many times, most people don't want "fakes". Copyright does more harm than good.
        [ link to this | view in chronology ]
      - Anonymous Coward, 19 Aug 2011 @ 9:08pm
        
        Re: Re: Re: Re: What copyright means
        "Copyright is ridiculous? Do you really think we should live in a world with absolutely no legal recourse for the out and out stealing or duplication of original, creative works?"
        
        I do, copyright is ridiculous and leads to surreal outcomes.
        People should just get over it and copy others too it may prove more beneficial to their own lifes.
        [ link to this | view in chronology ]
      - btrussell (profile), 19 Aug 2011 @ 9:17pm
        
        Re: Re: Re: Re: What copyright means
        Yes. Do you think the world will end?
        People copy people. It is how we learn. It is what we do.
        
        How did we ever survive before copyright? Were we in caves/trees until copyright?
        
        Can you create fire or do you need to pay someone for that privilege?
        
        What is 2+2? Don't answer if you haven't paid the original creator.
        
        What came first, book or copyright? Music or copyright?
        
        Are you afraid of competition? If someone "steals" your idea and implements it better, you can then turn around and "steal" right back from them their ideas and so on and so on until eventually one or both of you has a vastly superior product that copyright would have prevented from being created. Or do you think one idea wonders should be set for life and everyone else get screwed by having inferior products? Or do you think we need a stimulus for inflation?
        
        Yes, copyright today is ridiculous. I could handle the original agreement, but not to what it has been stretched to today. I don't see Elvis writing anything new. Not even if you doubled today's terms.
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 19 Aug 2011 @ 9:57pm
        
        Re: Re: Re: Re: Re: What copyright means
        You do know that your argument, while generous on rhetoric, is full of fallacies and misnomers? Yes, society advanced before copyright -- and after. I believe the automobile, television, and computer all post-date copyright law. Fire and math are products of nature and not subject to copyright. And someone can steal your idea without violating copyright -- copyright law only protects a particularized expression of an idea, and only if the idea is variable enough to lend itself to many expressions, and only if that particular expression isn't a typical one, and only if actual copying took place, and only if the copying entails a substantial portion of the expression was appropriated. Most of the time, you seem to be conflating copyright and patent law in your argument. I would suggest you take time to research the thing you seem to be so dead-set against, at least enough to actually be talking about it when you think you're talking about it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 20 Aug 2011 @ 12:31am
        
        Re: Re: Re: Re: Re: Re: What copyright means
        You can't be serious about the idea/expression dichotomy, must judges don't care specially those on the appeals circuit and the supreme is apparently indecisive about what to do.
        
        "Some recent computer copyright cases have expanded the scope of the idea-expression dichotomy even further, indicating a tolerance for protection of copyrighted computer programs at such an abstract level that one might wonder whether there is any vitality left in the idea-expression dichotomy at all."
        
        THE IDEA-EXPRESSION DICHOTOMY IN COPYRIGHT LAW
        http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1-20.htm#fn9
        
        Almost no courts recognize the merger-doctrine.
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 1:30am
        
        Re: Re: Re: Re: Re: Re: Re: What copyright means
        Funny, I run into cases all the time where judges use the idea/expression dichotomy to toss out comparisons between works, including cases I've worked on. It's dicier with software, but that's because copyright protection for software is more recent than for classic subject matter [books, movies, etc] and the courts are struggling with their analyses as such -- I wouldn't be so quick to label the entire dichotomy as irrelevant on that basis. And the whole scenes a faire/stock element doctrine [which is used just as heavily as the idea/expression dichotomy in the cases I deal with] is essentially a variation on the merger doctrine. So I think you're being a little hyperbolic.
        [ link to this | view in chronology ]
        
        btrussell (profile), 20 Aug 2011 @ 7:05am
        
        Re: Re: Re: Re: Re: Re: What copyright means
        "Fire and math are products of nature and not subject to copyright."
        
        Yes, rabbits multiply.
        
        What isn't a product of nature? What have we made out of thin air(also a product of nature) not using anything found in nature?
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 3:02pm
        
        Re: Re: Re: Re: Re: Re: Re: What copyright means
        What isn't a product of nature? Things that owe their origin to man. Fire is a naturally occurring phenomenon, owing its origin to nature. Math is a natural concept discovered (not created) by man, and discoveries are not the purview of copyright [that would be patent law]. Copyright covers works of original authorship. Expressions of ideas fixed by man in a tangible medium of expression. Think about any work of creative fiction; the author created it using his mental processes to expand upon ideas and then document the results, a creative endeavor not owed to any external source under the structure of the law. That's what copyright protects; but not any underlying idea or concept within the work not owed to the author. Those elements may be freely copied with impunity.
        [ link to this | view in chronology ]
        
        btrussell (profile), 20 Aug 2011 @ 9:39pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
        "Albert Einstein stated that "as far as the laws of mathematics refer to reality, they are not certain; and as far as they are certain, they do not refer to reality.""
        
        Math is a way for us to explain and interpret what occurs in nature, it is not nature itself.
        
        "The research required to solve mathematical problems can take years or even centuries of sustained inquiry."
        
        Yet this is worth nothing to society? Britney Spears is though right?
        
        Or do we not need to create incentives for worthwhile things?
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 11:58pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
        When the Supreme Court decided the Feist case in the 1990s, they explicitly disavowed the "sweat of the brow" theory of copyright -- that is, the theory stating that information gathered through hard work was copyrightable due to the sheer labor involved. Just because years or centuries of inquiry are involved does not change the fact that the inquiry is work aimed at discovering something the discoverer does not create himself. Therefore, it is not within the scope of copyright. Incentives for such laborious research may be provided through other means, such as patents, but not copyright.
        [ link to this | view in chronology ]
        
        btrussell (profile), 21 Aug 2011 @ 12:50am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
        I am not a Lawyer, nor am I interested in looking up case mentioned, but my conjecture is that the Supreme Court was smart enough to realize that Imaginary Property would eventually be put to use for new and novel Court defenses'. You know, a new idea that was thought of, recorded, implemented, and is easily copied.
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 21 Aug 2011 @ 6:01pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
        I would actually recommend reading the case anyway; it's one of the few times the Supreme Court has really taken up the essence of copyright in recent decades, and it provides a wonderful overview as to what copyright is -- its history, purposes, and many of its essential contours.
        [ link to this | view in chronology ]
        
        btrussell (profile), 21 Aug 2011 @ 7:10pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: What copyright means
        Thank-you for the link, I may take you up on that.
        
        Though it isn't likely to change my overall opinion, I've had a real life run-in with a publisher. Their essence was bad, and it lingers to this day.
        [ link to this | view in chronology ]
        
        nasch (profile), 21 Aug 2011 @ 5:24pm
        
        Re: Re: Re: Re: Re: Re: What copyright means
        And someone can steal your idea without violating copyright
        
        Nope, they cannot. It is impossible to steal an idea.
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 21 Aug 2011 @ 5:57pm
        
        Re: Re: Re: Re: Re: Re: Re: What copyright means
        To be fair, I was using the verbage of the person I was responding to (btrussell), albeit sans quotes. I am very aware of the difference between theft and infringement [and how serious the Techdirt community is about calling out the conflation].
        [ link to this | view in chronology ]
      - Richard (profile), 20 Aug 2011 @ 7:54am
        
        Re: Re: Re: Re: What copyright means
        Copyright is ridiculous? Do you really think we should live in a world with absolutely no legal recourse for the out and out stealing or duplication of original, creative works?
        
        Yes!
        [ link to this | view in chronology ]
        
        Richard (profile), 20 Aug 2011 @ 8:00am
        
        Re: Re: Re: Re: Re: What copyright means
        Because it would save those who are currently taking legal recourse a whole lot of wasted time and effort.
        
        (Actually I would alter my previous answer a little bit - two things do need to be defended against:
        
        1. Plagiarism (ie selling someone else's work as your own.)
        
        2. Failure to pay for the production of work under a contract.
        
        However these do not require copyright - just contract laws and laws against fraud.
        [ link to this | view in chronology ]
      - Eric Seaholm, 20 Aug 2011 @ 4:32pm
        
        Re: Re: Re: Re: What copyright means
        "Do you really think we should live in a world with absolutely no legal recourse for the out and out stealing or duplication of original, creative works?"
        
        Yup.
        
        You see, copyright is the murder of love (i.e., kills creativity as expression).
        [ link to this | view in chronology ]
    - DandonTRJ (profile), 19 Aug 2011 @ 8:32pm
      
      Re: Re: Re: What copyright means
      Except nobody would suggest something so basic as a single pose is copyrightable (though believe me, many a yoga instructor wishes it was). Rather, a similar pose, combined with numerous other expressive elements, may be creative enough to be copyrightable. But courts also look to the frequency with which similar expressions appear within a medium to decide whether they deserve copyright. For example, a shootout in a saloon is a stock elements of spaghetti westerns and would not be infringed upon by future films employing such tropes. Thus, simple poses used often in professional photography would not be copyrightable. And, of course, independent creation is a complete defense regardless of copyrightability if the plaintiff can't prove the defendant ever saw their work [absent some very striking similarities that make denial of access to the plaintiff's work literally unbelievable].
      [ link to this | view in chronology ]
      - btrussell (profile), 19 Aug 2011 @ 9:33pm
        
        Re: Re: Re: Re: What copyright means
        So what about a series of poses?
        
        Because I am thinking of taking a movie of myself walking, taking out a sequence of stills and composing them into a collage of my walk. Then, anyone who wants to walk like me, upright on legs, one foot in front of the other, heel to toe, arms swinging back and forth, can pay me for the privilege of doing so. And they better come crawling!
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 19 Aug 2011 @ 9:50pm
        
        Re: Re: Re: Re: Re: What copyright means
        Except the poses have to relate to artistic choreography, and there ain't nothing artistic about straight-up walking. I discussed earlier how copyrighted subject matter must contain a creative spark, and so elements of a claimed work that are either too mundane or typical within a class of work can never be copyrighted. So if you're aiming to copyright a series of poses, they'd better be very interesting poses, and you'd better have enough of them in a specific sequence to form a concrete pattern deserving of artistic protection. And even then, given the nature of the subject matter, the copyright would likely be "thin" [meaning only virtual or exact replication would violate it].
        
        Copyright may seem ridiculous at times to those not schooled in it [and, admittedly, is sometimes ridiculous even to the legally learned], but there are many safeguards in place to try and prevent the truly ridiculous outcomes from ever manifesting.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Aug 2011 @ 11:52pm
        
        Re: Re: Re: Re: Re: Re: What copyright means
        ???
        
        Motion capture libraries then are not copyrighted?
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 1:55am
        
        Re: Re: Re: Re: Re: Re: Re: What copyright means
        Having never dealt with motion capture libraries, I can't tell you for certain. The choreography contained [if quite basic] may not be copyrighted while the computer code recording those motions might be (since computer programs are considered literary works under the Copyright Act), but without more research, that's just speculation on my part. Keep in mind that a single work can involve multiple potential copyrights (like a movie having audiovisual protection while its underlying script has literary protection).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 20 Aug 2011 @ 10:00am
        
        Re: Re: Re: Re: Re: Re: What copyright means
        but there was a time where just standing up and walking WAS a creative moment, that very first time it happened. In your earlier comment, a shoot-out in a western is now a stock component of a certain class of film and not copyrightable, but the very first time WAS creative. If Copyright had been enforced after the first occurrence of both these examples, they would not have become common. And at least with the walking example to the great detriment of humanity. With the shoot out not so much, but even so restricting it's use in film would have had an impact on the industry. In how many places and situations is copyright of today preventing the adoption of actions that, perhaps, should be common in the future? (Note: Grammar Nazis, what's the proper future tense of should be?)
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 2:45pm
        
        Re: Re: Re: Re: Re: Re: Re: What copyright means
        In your earlier comment, a shoot-out in a western is now a stock component of a certain class of film and not copyrightable, but the very first time WAS creative.
        
        The scenario you've theorized seems plausible based on the single line of logic underpinning it [everything starts out creative -- but I would even quibble with that and call walking practical rather than creative]. But even granting your premise, there are always multiple limits on copyright law working simultaneously to prevent impractical outcomes.
        
        Even if a western shootout [moving to my earlier example] was not yet common in films when utilized by a filmmaker, there are multiple other basic defenses for a subsequent filmmaker to use; anything from a shootout being a mere "idea" [the expression of which from the first film isn't copied] to it being a historical fact [shootouts frequently occurred in the wild west, so utilization of it is stock right out of the gate] to having come up with the idea of using a shootout independently of the first filmmaker.
        
        The goal of copyright isn't to prevent wide use of any underlying concept, but to prevent slavish copying of an expression of that idea beyond utility. So without concrete examples of copyright preventing adoption of mere actions, I have to assume the built-in prevention measures are doing their jobs.
        [ link to this | view in chronology ]
      - btrussell (profile), 20 Aug 2011 @ 8:23am
        
        Re: Re: Re: Re: What copyright means
        "Except nobody would suggest something so basic as a single pose is copyrightable (though believe me, many a yoga instructor wishes it was)."
        
        So this lawsuit and many yoga instructors...
        
        You seem to be confusing "nobody" with many people.
        
        "I would suggest you take time to research the thing you think you're talking about it."
        [ link to this | view in chronology ]
        
        DandonTRJ (profile), 20 Aug 2011 @ 2:33pm
        
        Re: Re: Re: Re: Re: What copyright means
        Let me clarify: no reasonable copyright authority would. This lawsuit was idiotic and the judge clearly treated it as such. And a wish does not equate to a realistic suggestion.
        [ link to this | view in chronology ]
        
        btrussell (profile), 20 Aug 2011 @ 9:08pm
        
        Re: Re: Re: Re: Re: Re: What copyright means
        I'll clarify as well. I don't like "Imaginary Property."
        [ link to this | view in chronology ]
- Bnesaladur (profile), 21 Aug 2011 @ 7:28pm
  
  Re: What copyright means
  This whole concept of copyrighting photography, with the exception of selling photographs of copyrighted artwork, is stupid. Essentially you are attempting to copyright different poses of living creatures, say humans, or even nature itself. Does the line even stop there? Are we eventually going to have to pay to stand in certain ways because its an infringement? As stupid as it sounds, what if someone sees you and it looks the same as a existing work? What if a photograph gets taken?
  
  Photography itself is not art, even though you can hold the camera in different ways and lighting may produce different results. Yet it is simply physics. If you take a photograph and digitally modify it however, that is art. So unless you have two pictures that look similar and then are both modified in the same way, all you have is a near exact representation of the world, based on physics not art. Any other definition is limiting as the natural extension leads to things like no longer being allowed to take pictures of your kids birthday party because someone else did first.
  
  In closing, photography is not about art, although as stated earlier modifying the photographs can be artistic. Photography is about the storage of memories. Its about showing to others 'what you SAW' not 'what your CREATED'.
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  - nasch (profile), 21 Aug 2011 @ 7:39pm
    
    Re: Re: What copyright means
    Is photorealistic art art? If you make it look exactly like what you see, but using some other tool rather than a camera, does that make it art? Most photography isn't art, but I think some is, particularly where the photographer actually did create something - created a scene that wouldn't have been there otherwise. It's harder to claim artistry for taking a photo of something that was there anyway.
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  - DandonTRJ (profile), 21 Aug 2011 @ 8:24pm
    
    Re: Re: What copyright means
    I would suggest you read the clasic Burrow-Giles case to see why the courts disagree.
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Anonymous Coward, 19 Aug 2011 @ 6:20pm

PDF
Gordon v. McGinley et al (S.D.N.Y., Aug 18, 2011)
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DandonTRJ (profile), 19 Aug 2011 @ 6:32pm

This case is screaming for a 505 motion by the defense.
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- G Thompson (profile), 20 Aug 2011 @ 12:20am
  
  Re:
  Never realised you had that in the Title..
  
  I immediately thought Rule 11, though proving it is normally an exercise in futility. 505 though seems more reasonable and to have more chance, especially with the tone of the ruling ;)
  
  Any statistics on the granting of 505?
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  - DandonTRJ (profile), 20 Aug 2011 @ 1:50am
    
    Re: Re:
    I am horribly failing at using Techdirt tonight! My response is here.
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DandonTRJ (profile), 20 Aug 2011 @ 1:49am

Application of 505 is basically in the court's discretion. I don't have statistics in front of me, but I've seen grants of it justified almost solely on the basis of the beneficiary's victory furthering the purposes of the Copyright Act.

Technically, it's a five-part test, at least here in the Ninth Circuit, looking at (1) the degree of success obtained; (2) frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party's factual and legal arguments; and (5) the need, in particular circumstances, to advance considerations of compensation and deterrence.

In a case I recently worked on, the judge found that the losing party brought his case in good faith, but that his claim was objectively unreasonable (despite some precedent arguably supporting his position and a very similar case a few years back denying a 505 award). He got hit with nearly half a million bucks in fees and costs. In theory, rulings like that one should be a pretty strong deterrent for flimsy claims, but I still see plenty of pro se or judgment-proof plaintiffs rolling the dice anyway.

I remember hearing someone propose that plaintiffs should be required to post bond in anticipation of potential fee awards -- now that would free up a decent amount of space on the court dockets...
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- G Thompson (profile), 20 Aug 2011 @ 3:33am
  
  Re:
  And it seems you have infected me with your reply post failings.. o_O
  
  link here
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G Thompson (profile), 20 Aug 2011 @ 3:31am

Thanks for that, and my keyboard is failing at correct spelling tonight, I'm blaming it on being 8pm on a wet cold Saturday night here.

The test phase seems fair, though that recent case where your learned friend got hit with the fees/costs, and with precedent to support (wow), seems like it is really discretionary on what the court thinks at the time. Sounds similar to most situations here (Aust) as well under civil rules.
'
Ive heard the same proposal for placing an amount in escrow by plaintiffs especially in our small claim courts (under $6001 here) and that would VERY much clear dockets.. Oh the joy ;) Though sadly I don't think it is going to happen soon.
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- DandonTRJ (profile), 20 Aug 2011 @ 4:14am
  
  Re:
  Haha, no worries -- it's nearly 4am here in the states, so I get to blame my mental lapses on insomnia.
  
  You nailed it; copyright is absolutely replete with blurry lines, and when you brush up against them, 505 puts you in the danger zone. The case I dealt with was a summary judgment showdown between a screenwriter and a media company, mostly dealing with the level of similarity between their works necessary to proceed to trial. The screenwriter had around half a dozen cases helpful to analogize to, but the company had dozens of unhelpful ones (with analytical methods that often seem to clash with the methodology of the screenwriters' cases, none of which have been declared bad law). It came down to the judge buying the unhelpful analyses. The 505 award was the court both adding insult to injury and sending a message: good faith or not, no more bringing wishy-washy copyright claims against media companies.
  
  I don't think the escrow/bond option will happen either, for reasons/pretensions of justice [pity the indigent pro se litigant with a golden case], progress [we want people pushing against the law to see how resilient it is], and simple mercenary economics [lawyers like being able to raise a ruckus with limited liability]. In the meantime, fee awards are the next best option, but as with all things equitable, some judges swing a little wild.
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The Devil's Coachman (profile), 20 Aug 2011 @ 6:11am

As I said before, and will say again.....
Stupid bitch!!!
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Not an Electronic Rodent (profile), 20 Aug 2011 @ 8:22am

Am I just being picky....?
.... and taking copyright law to its ludicrously logical conclusion, or:

Plaintiff attempts to obscure these �peripheral� differences by cropping and rotating the Gordon Image and converting the McGinley image to black and white.

does not changing the image in this way constitute creating a derivative image and therefore copyright violation in its own right?
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Jose_X, 20 Aug 2011 @ 10:29am

Please tell me it's me
I didn't have to get to the end of the title of this piece above to have guessed what pictures it was talking about.

Is it time for me to start playing the weekly lottery and make some juicy money..

Or is this lawsuit techdirt has been tracking THAT BAD AND PATHETIC?
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emdc (profile), 20 Aug 2011 @ 11:03am

Best news I've heard in days
This woman apparently thought much more of her "talent" than the rest of the world & it's a joy to see this ridiculous case dismissed.

I read quite a bit of background info on Janine Gordon & what lead up to this lawsuit & came away with the impression that she thought the world was out to rip her off. Obviously she has no friends, otherwise someone would have knocked her up side the head long before it got this far & tried to bring her back to the reality the majority of us experience.

I think therapy & medication might in order for her now.
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sjbreiner, 20 Aug 2011 @ 11:06am

legal fees
Anyone know if Gordon had to pay legal fees for the defense? Seems an easy way to encourage IP holders to stick with reasonable suits.
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Anonymous Coward, 20 Aug 2011 @ 11:13am

Yeah, you're not a law blog. No, not at all.
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- Any Mouse (profile), 20 Aug 2011 @ 3:40pm
  
  Re:
  You keep saying that when we're discussing copyright rulings, but why not when we're discussing something else? Just because you only pick on the legal discussions doesn't a law blog make.
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DandonTRJ (profile), 20 Aug 2011 @ 2:54pm

An additional bright spot in the case: the defendant apparently tried using the recent LaChappelle ruling involving Rihanna (derided here on Techdirt) to support her case (see the footnote on page 7 of this case) and the court not only found the comparison inapposite, but were also "ultimately unpersuaded" by LaChappelle's analysis. So at least one judge is already looking at that case with skepticism. The idea/expression dichotomy may not be dead after all.
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- DandonTRJ (profile), 21 Aug 2011 @ 10:59pm
  
  Re:
  God, I'm just all over the plase lately; I mean the plaintiff tried to use it.
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  - DandonTRJ (profile), 21 Aug 2011 @ 11:00pm
    
    Re: Re:
    Place! All over the place! That's it, I'm going to sleep.
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Rob, 21 Aug 2011 @ 1:21pm

Copyright
So, my girlfriends butt is two-lobed and round. She poses in front of a boulder which looks like a butt. Anyone who poses their model's butt in front of a butt-like boulder is going to get their asses sued by me.
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ArkieGuy (profile), 22 Aug 2011 @ 8:10am

I have a theory...
I'm an amateur photographer and I'm not a lawyer but I still have a theory....

Assuming you have:
100 professional photographers
100 identical studios
100 professional models
Every photographer takes 100 photos of each model

You will see TONS of "almost identical" photographs. Part of the reason for this is that models tend to have "routines". Each model will have her own, but many routines will be very similar. While it's most likely, that "similar" pics will come from the same model, it's still very likely that models with similar body styles will be more likely to have similar routines and result in similar pics.

And yes, the sign of a good photographer is to get the model to do what YOU want for your picture, however many of the best photos are just catching the right combination of pose, expression, etc. And if one photographer thinks it's "good", you can bet he wouldn't be the only one to see it and shoot it.
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Roast Chicken (profile), 22 Aug 2011 @ 9:36am

Jah Jah is such a nice lady...
Whatever, the final judgement, at least we can all agree she's a nutbag. Here's an email response to my enquiry as to how many photos she'll have to sell to pay her lawyer:

"I dont know who you are nor do I fucking care - but if you can't see the similarities than you are blind-
I am being ripped off for 10 years-

GO JUDGE YOURSELF_ I HAD 6 EXpeRTS
and they judge decided he did not want to see it-
when I FIND YOU AND SEE YOU FACE TO FACE YOU CAN TELL ME HOW BLIND YOU FUCKING ARE
PUNK DICK"
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- nasch (profile), 22 Aug 2011 @ 10:39am
  
  Re: Jah Jah is such a nice lady...
  Classy chick!
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  - btrussell (profile), 22 Aug 2011 @ 10:40am
    
    Re: Re: Jah Jah is such a nice lady...
    Not that I am disagreeing.
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- btrussell (profile), 22 Aug 2011 @ 10:39am
  
  Re: Jah Jah is such a nice lady...
  In fairness, where is the e-mail you sent?
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Tom, 22 Aug 2011 @ 8:13pm

Am I the only one that noticed the photos are swapped?
Please look at the first four images, then later down.
I believe the J.Gordon vs. R.MaGinely images have been swapped in the very first set. Gordon uses a model with a shirt. MaGinely's model is bare chested.

Was the error Techdirt's, or was Gordon equally confused.
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Annette Karen Mayer, 22 Nov 2011 @ 10:50am

The Legal Ramifications of Gordon V McGinley
Your posts seem very slanted toward McGinley, especially the choice of the 150 photographs found in the exhibit. They look like the weakest ones to me.

"The recent ruling of Gordon v McGinley, Levi Strauss, Co, Cris Perez of Ratio 3 Gallery, Team Gallery and Peter Hay Halpert Fine Art, has recently been a widely discussed controversy in the art world. Is this case in particular, the tipping point for the procreation of freedom of individual expression in America? Is it possible that the judicial system made an incredibly huge mistake by ruling a work of art of considerable stature as simply a commercial form of expression? The trial resulted in the New York court system dismissing the case, plus Gordon�s expert witnesses, and an analysis that illustrated the copyrightable elements of the various works in question. Is it possible that this is a pure illegality of judicial powers and a threat to the proliferation of creativity at its core?

Seemingly a victory for any artist that associates itself with the Appropriation movement, this actually appears to be a ruling where the judicial system inadvertently demolished the rights to a fair trial for the independent fine artist. It is ethically wrong to heavily appropriate another artist�s work? The mere idea of making a commercial profit off of the essential heart and soul of another artist�s vision in the same genre leaves a very bad taste in the mouth of the art community. Does this ruling set a precedent for various other companies to freely appropriate thematic structures from any artist they choose if and when they see fit, possibly leading to the loss of individualism? There are serious allegations that are stated and examples that lead the viewer to wonder if the primary inspiration from a numbered 150 photographic works by Janine Gordon were the primary inspiration of Ryan McGinley.
Originality and the inventiveness of the imagination, is the very Achilles heal of the art world which has now been superseded by an seemingly overzealous judicial system who obtained authority to deem a body of work as not worthy of being protected. The 2nd District court claims that such an action is frivolous, but the fact remains that millions of capitalistic dollars have been profited from Gordon�s art work .

Is it possible for any good lawyer to reverse a dismissal or win a case that is unethical, which in fact, Levi Strauss and Co. , McGinley and his art dealers have the capabilities of achieving? What happens in the case of Ms. Gordon, who is an independent fine artist struggling to survive in New York City, who couldn't afford the highest paid IP Law firm? Gordon was fortunate to obtain a sympathetic lawyer who was able to ensue an actionable claim against McGinley and parties. After her case was dismissed, is has been said that the defendants are seeking legal fees and threatening to impose sanctions upon them. Gordon is not a commercial photographer to say the least, she is one of the few artists that transcend even the barriers of a typical fine art photographer and is exhibited amongst contemporary painters and sculptors. Her work is of a recognized stature and should have been held to a higher standard, as critics like Dan Cameron pointed out in his testimony.

Her work was highlighted at the 2002 Whitney Biennial, as well as being included in many prestigious collections such as the Hammer, SFMOMA, MAMCO, and recently seen at MCA Denver amongst many international museum, project spaces and galleries. As a volume of her life�s work, the 150 photographs that Gordon defined as infringing, is a large portion of the heart and soul of her accomplishments. Where artistic expression is the most important value aligned to an artist, when it is infringed repeatedly by either one individual or a company, it dilutes the primary �aura� (Walter Benjamin, ��The Work of Art in the Age of Mechanical Reproduction� (1936) According to Benjamin an artwork has an �aura which can wither �with reproduction and its function and the tightly woven history of art could possibly be stripped of its message.

There is an obvious moral element of ethics that are at the core of this dismissal. Established visual artists should be protected by the legal system and other guidelines should have been applied by the courts. If big businesses can fund politicians, do they also have enough power, money or connections to sway a judge�s decision by dissuading them from pursuing cases that may risk in financial loss? When I viewed the evidence in this trial, I saw that the elements considered copyrightable are the expressive elements in Gordon�s work. The work that has been produced by these two artists have the same compositions, the same center of focus, similar lighting and similar technique. It appears as if McGinly deliberately cropped his photos to look like Gordons as well. And although nudes are a typical artistic subject as well as photographs depicting youth subculture, the question of source material is obvious when you closely look at the time line in which both bodies of work were produced.

The particular judge in this trial disregarded what is defined as copyrightable elements, reducing all of Gordon�s work into basic subject matters such as nudes, kissing or biking. In Gordons� work, the expressible elements are the basic things in fine art such as the color, contour, light, forms, composition, angle, focal point, and the physicality of her work. These combined elements of expression, in any particular work of art, is protected by the 1976 US Copyright Act. There are other elements that can be defined in a work such as, the energy, the gestalt and the context. A work that is derivative, does not have to be an exact copy to be of substantial infringement. Anyone can invert an image, alter its contrast and enhance its color and even replace the actual subject of flesh with fruit, as artists such as Giuseppe Arcimboldo and Max Ernst have often been known to engage in the dialogue of visual illusions and visual allusions. If the audience in the art world grew tired of seeing her style and message proliferate, wouldn�t that denigrate the value and need for her work?

They say that money rules everything and the gaps are growing larger than ever before in the history of civilization, given the climate of the Occupy Wall Street Movement. As a tour de force, in October 2010, Janine Gordons' work was featured both on the cover and a 15 photo spread throughout the Adbusters Revolution issue. Adbusters.org is the known initiator of the Egyptian Spring riots and the Occupy Wall Street Movement. The Revolution was cited by Adbusters as their "Tools for Activists" http://www.adbusters.org/cultureshop/backissues/91 Gordon is not out in the riots taking pictures, but her spirit is there. She talks about the revolution for the art. Her work is revolutionary. What her work ephemerally embodies is about the spirit. Anyone can take an image and try to recreate it. When this happens, the spirit gets diluted and becomes something other than what it originally was. It is an obvious point and that the Court should have considered.

�Critical history is supported by manipulative history.� (Habermas) When I read through the articles and blogs revolving around the case, it seemed like a cheap Hollywood gossip column that has been carefully orchestrated. They present a very well respected artist who is being �robbed� by a �hyped out� fashion photographer. Could it be a feasible maneuver to sway the public to victimize Gordon, if you had a few dollars or a few favors that needed reciprocation? There were several articles that slandered Gordon, one in particular, by Jose Freire of Team Gallery was so demeaning that it attacked, unfoundedly, the quality of her prints. Jose Freire, one of McGinley's art dealers, sent a dark message to the art world regarding the historical context of her work, in favor of his hot selling artist McGinley who began making photographs in 1999, more than 10 years after the creation of Gordon�s work.

It seems odd that Freire admitted going to Gordon's studio to see her work, but 5 years later he began to work with McGinley. It is also suspicious that Gordon�s 4 year working relationship with her former dealer and curator friend, Chris Perez of Ratio 3 gallery also worked extremely closely with both artists.There is obviously a closely knit art world that can join forces. There were private messages that were sent in confidence that were published and were worded in such a manner as to point to her as the perpetrator. What would the purpose of these people to divulge such information in such a public manner be? There seems to be an undeserved lack of support for Gordon. If she was the victim of manipulation and appropriation, can this effect the future of the fine standards that are upheld in art? Is this invested interest the consequential effects of great importance because of monopolizing corporations like Levi Strauss or hungry art dealers and advertising agents? Is the purpose of freely using any content deemed to be profitable, created by fine artists and appropriated for commercial use, for the purpose of advancing society, or just simply selling a product?

It is beyond the catch phrased incidentals that were echoed by various blogs criticizing the case, that he only was familiar with Gordon�s work by possibly gaining access by casually going to exhibitions, was not even close to the truth. Nothing of the sort was ever mentioned in articles, nor was the fact that they had mutual art dealers, a mutual printer and were in several exhibitions together. This is Gordon�s life�s work that the court decided to disregard in lieu of the fair use of imagery. Janine Gordon was quoted as being the next Andy Warhol in the year 2000 by the art critic Ken Baker. This was a number of years before McGinley's commercial production of such similar subject matters surfaced. When these two artists are represented by not one, but two galleries in the very city in which this article was read as well as both being represented at the Whitney. It is up to every member of the community to step up for what is right. This is a serious issue that needs to come to the surface. There was a well established artist whose rights were not recognized. It could affect every upcoming artist that is not in the right "circles", leaving the doorway open."

All your talking about is very rude , and it sounds like the blog owner has some inside connections. A. Mayer
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- nasch (profile), 22 Nov 2011 @ 11:45am
  
  Re: The Legal Ramifications of Gordon V McGinley
  One, copyright law doesn't prohibit leaving a bad taste in someone's mouth, or taking inspiration from another's work (even if that is what happened here). Two, "Her work is of a recognized stature and should have been held to a higher standard" is news to me. Is there something in copyright law or copyright caselaw indicating that works of "recognized stature" get some greater level of protection from infringement? I would be interested in any references you have on that point (I wouldn't consider testimony from an art critic as relevant).
  
  Finally, do you have other examples from the trial that you believe more clearly show copyright infringement? Perhaps you could point out specifically what makes you believe the works were either copied, or that there was a derivative work created.
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