Photographer Appeals Ruling Saying It's Not Infringement To Have Vaguely Similar Photos
from the judge-didn't-understand-copyright-law? dept
Last summer, we wrote about a simply ridiculous lawsuit from a photographer, Janine Gordon, against another photographer, Ryan McGinley, claiming copyright infringement for taking photos that were at best marginally similar. Seriously, the similarities between these photos is hard to see in most cases, and any claims of actual copying seem almost totally non-existent:
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 compositionsThroughout the ruling, the judge eviscerates Gordon's arguments, calling her claims "infirm." You might think that Gordon would get the hint. Instead, she's appealing the ruling and insisting that it's the judge who doesn't understand copyright law. As ArtInfo quotes and summarizes from the appeal:
"The District Court improperly dismissed my law suit because it did not apply the copyright law correctly," it reads, adding that the previous decision "exhibited a lack of intrinsic comprehension of art, and its expression or intended expression." Gordon claims that the court ignored the copyrightable elements of her work and that its judgement rested on the content rather than the stylistic decisions of her photographs: "the District Court’s focus on the similarity in subject matter, which was only part of my artistic choice, was a great error."Of course, if you read the original court ruling, nothing could be further from the truth. The ruling talks about the "artistic choice" argument too, and found it lacking. Hopefully, the appeals court makes quick work of this as well. As Artinfo notes, McGinley's lawyers certainly don't seem particularly worried.
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Filed Under: copyright, janine gordon, photography, ryan mcginley
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Give me my millions!
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This is not what copyright protects.
What is not protected is idea of your work. The founding fathers never intended that any particular idea be protected by copyright.
Thomas Jefferson said, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
Now, patents are a very limited monopoly on the notion of an idea, but only the physical embodiment of a particular implementation of an idea. Nothing in any of those photographs is patentable. There are a billion photos of people jumping, or kissing, or doing whatever. I can find thousands of stock photos that look almost identical to any photo you can describe.
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Re: This is not what copyright protects.
Will somebody not think of the descendants!
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Re:
My hope is the judge will come back again and say, "Don't be a muppet," and provide important case law for others faced with, and contemplating, similar action in the future.
Though the UK did *not* set a good precedent here...
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Re: Re: This is not what copyright protects.
No, wait. Ummm, that's not quite right. I know it's something like that. Oh, I've got it!
Think of the children!!
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What's next .... Olin Mills getting sued for millions of family portraits? Is there a punishment for bringing frivolous lawsuits?
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Re: Re: Re: This is not what copyright protects.
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It all started with all good intentions and now it has gone terribly wrong.
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Or do these infringe on her photos too? If so, she's about half a century too late....
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(Which was the most bizarre argument I heard in favour of the UK ruling.)
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Pay no mind
The next step would be to purposely violate it whenever possible.
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UK Case?
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Re:
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What if
Who owns the copyright?
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I also love the "legs in a V shape." If I recall my basic human anatomy legs are jointed to the hip at the top of the leg. Just about any picture of a person in any other position besides having their feet together is going to result in "legs in a V shape." Ditto a bent knee being a V shape.
From the first picture it appears that having the subject's fingers relaxed into a natural curve is a unique artistic feature as well as having the hands holding said relaxed fingers attached to the end of an arm.
How do attorneys who file these types of suits avoid being disbarred?
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Cases like this need to be shown to lawmakers who pass stronger copyright laws. It seems so obviously problematic.
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Re: This is not what copyright protects.
Whether you try to pass it off as your own is irrelevant. Very little of the copyright infringement that takes place now is also plagiarism, so if you're going to include that restriction you might as well just abolish copyright altogether (which wouldn't bother me).
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Re: UK Case?
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Re: What if
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What we really need is plaintiff pays for the defendant when the defendant wins, defendant never pays for the plaintiff. This ensures that law suits are used only to recoup excessive damages, instead of abused to attempt to drive competitors out of business.
Oh, and the plaintiff should pay for a loss before being allowed to file for an appeal. If the appeal overturns the ruling after such a payment was made, the money that was paid to the defendant can be tacked on to the damages then (so the plaintiff gets their money back).
Also, when dealing with an appealed case, the monetary burden is placed on the appealing party should they lose.
Basically, whoever initiates a court action should take responsibility for funding the case should the decision be that the court action should not have occurred (ie, a ruling against the initiator). This responsibility should be levied before any further court action is allowed.
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Gordon v McGinley
The photographs he uses to prove his point are the weakest examples.. given by McGinley- He has no knowledge of the lawsuit and has no business writing on something that he is knows little about. If he was NOT BEING PAID BY THEM- than he HOW did he access ANY of the MATERIAL that is in the Lawsuit? MIke Masnick is obviously slanted and MUST DISCLOSE that he is being paid by McGinley or he will be liable.
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Re: Gordon v McGinley
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Re: Gordon v McGinley
How do you know Mike used the "weakest" examples? are there more? If you are NOT BEING PAID, how do you know these are the "weakest" examples and how do you know these are even being used in the lawsuit?
You have to DISCLOSE that you are being paid or you will be liable.
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It would also ensure that only rich people could afford to bring a lawsuit that's not a slam dunk.
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Re: Re: Gordon v McGinley
Just one word for that: pwned.
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Re: Re: UK Case?
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Re: Gordon v McGinley
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People generally don't take action against members of their own social groups.
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Re: Gordon v McGinley
They are not. And no amount of someone else telling a seasoned photographer they are is going to make that stick.
You are either a supporter of the complainant, the lawyer or, maybe the complainant.
Either that or a troll.
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Re: Re: Gordon v McGinley
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Re: Re: Gordon v McGinley
http://www.petapixel.com/2011/07/14/at-what-point-does-inspiration-turn-into-copyright-infr ingement/
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Gordon v McGinley
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.
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Gordon v McGinley
In the 49-page document, filed yesterday with the U.S. Court of Appeals for the Second Circuit, Gordon argues that the district court judge did not even review her claims -- “none of his analyses addressed them, nor do I believe that he considered them” -- and that his judgments were simply incorrect. The court “exhibited a lack of intrinsic comprehension of art,” she wrote.
Gordon argues that the court should have applied the standards of the Visual Artists Rights Act of 1990 to her case, which would allow experts to weigh in on copyright discrepancies. Gordon had enlisted former New Museum curator Dan Cameron and dealer Volker Diehl, among others, to testify on her behalf, but the district court judge said their statements were irrelevant because infringement should be determined by lay observers.
Now, Gordon is hoping for a more expansive analysis of the 150 photographs in question -- one that looks at “protectable elements that ‘lie beneath the surface. . .’” She claims a lay person might not see, for instance, McGinley’s graphic tricks, the “minor differentiating elements” he employs such as cropping, flipping, resizing or adjusting the color palette as “a means to obscure his copying.”
Gordon’s final argument is one that seems like it could rankle a new judge. She points out that Richard Sullivan, the district court judge, handled a merger and acquisition in the 1990s for Levi’s, where McGinley worked for a time as a photographer and is a co-defendant in the suit. (See Gordon's photos compared to stills from McGinley's Levi's ad here.) Sullivan was also later “associated” with the brand while working as a litigator for the law firm Marsh & McLennan Companies.
“Although I am not accusing Hon. Judge Sullivan of any impropriety in this case,” she writes, “I do believe that Judge Sullivan should have at least informed us of a possible conflict of interest due to his direct and indirect ties to Levi Strauss and Co., and offered to recuse himself if either party felt it appropriate.”
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Before you judge
Here is the analysis of the 150 photographs.
http://www.thing.net/~janine/EXHIBITEfinalpDFsm.pdf
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Re: Re: Re: Gordon v McGinley
HEre are ALL 150 EXAMPLES_ this has been public- We learned about this in our copyright and ART class at SFAI
http://www.thing.net/~janine/Site/HOME.html
YOU GUYS ARE ALL WRONG__ STOP PAYING ATTENTION TO SLANTED MEDIA!!!!!!
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Re: Re: Re: Re: Gordon v McGinley
Hahaha, oh wow! They are all as, if not more, ridiculous.
Not a single one of them compare.
She just want attention.
I think she should just go cry to her mom like babies should do.
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Oh wait, no they aren't, Janine Gordon is just wrong in every way possible.
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Seconded. "That Anonymous Coward" has always had a Guy Fawkes Mask. And it is a still a good idea to be reluctant to annoy him.
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But to be fair, I haven't seen all the images in question either but if these are even remotely representative of what she's talking about ... there isn't really any way I could say his are hers.
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Smiling
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Re: Re: What if
This is very close to reality; not some imaginary privilege that some people think they have based on the law. The Universe owns everything. We are just visitors. 175 years from now we'll be lucky if someone even remembers that we existed, which is why copyright being life+95 is absolutely asinine -- it certainly isn't going to get an author to write more after they are dead.
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Re: Gordon v McGinley
The guy did not copy her shit. Copying is taking her picture, putting it on a xerox machine, and pressing "Copy". He didn't do that. Grow up.
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Re: Gordon v McGinley
"""Sounds like they must love the fact that McGinley can freely steal 150 works!!! """
Yes. Yes we do. Furthermore, we love the fact that we can all take a picture of three shirtless boys wearing shorts laying on the ground with their arms bent and not lose a copyright infringement lawsuit brought against us by a lunatic. Although I have no interest in photographing shirtless boys... not that there's anything wrong with that.
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Re: Gordon v McGinley
In photography (very different than writing for example) it is very possible for many individuals to take the same picture using the same artistic elements and not have copied anything from one another. This is why each and every one of them gets a copyright on their SPECIFIC photograph.
The judge understands that Congress never intended for the implications of Gordon's suit to be realized--that if similar photographs can infringe, we might as well all turn in our cameras because anyone taking pictures at a tourist location would become a serial infringer.
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"When stripped of color, reversed horizontally and isolated..."
oh, so when you change damn near everything, it maybe looks similiar. Maybe i should take a picture then file a lawsuit on ms gordon. here will be my proof
"when Gordon's picture is contrast adjusted, faded, colors all changed around, flipped upside down, and dramatically zoomed in on something out of focus in the background, then hung on a dimly lit wall and covered with the picture i took, IT LOOKS JUST LIKE MY PICTURE!!!"
i want 6 trillion dollars worth of damages.
but really. shes trying to copyright someone looking up.
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Re: Gordon v McGinley
You're much better off being a Press Monkey, 'cause that's what you are.
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Re: Re: Re: Re: Re: Gordon v McGinley
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Re: Re: Gordon v McGinley
You can tell from "Thomas"'s earlier diatribes that he doesn't have the ability to type coherently or politely, unlike the words he's conveniently lifted.
"http://www.thing.net/~janine/EXHIBITEfinalpDFsm.pdf
HEre are ALL 150 EXAMPLES_ this has been public- We learned about this in our copyright and ART class at SFAI
http://www.thing.net/~janine/Site/HOME.html
YOU GUYS ARE ALL WRONG__ STOP PAYING ATTENTION TO SLANTED MEDIA!!!!!!"
Somehow, his wholesale copying of quotes is perfectly acceptable.
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Re: Before you judge
When are you surrendering yourself to the police for your copying of A. Mayer's wall of text, eh?
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Re: Before you judge
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Re: Re: Re: What if
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So who foots the bill?
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The only people who "annoy" me are trolls and shills. I am always up for a discussion with people with differing points of view, as long as we both stay in the realm of reality. (Hence me hating trolls/shills).
I'm just a harmless kitten in a Guy Fawkes mask... why fear me?
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She has also listed dates incorrectly in the filing to make her case stronger.
http://www.artinfo.com/news/story/38091/did-ryan-mcginley-rip-off-photographer-janine-j ah-jah-gordon-see-the-evidence-and-decide-for-yourself/
So his image predates her by 4 years, maybe he should sue.
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In a related story, Walmart refuses to provide print because it looks "too professional". Haha that is just so full of pompous ass that one might think Walmart will only provide prints to those whom they consider to be bad photographers - LOL.
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Re: Gordon v McGinley
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Re: Re: Re: Re: What if
Yeah, there are all types of crazy. I figure the only person who could lay claim to the sun was the person who was there when the atoms of hydrogen began collapsing and the nuclear fire began, or, like was pointed out in that article, she takes up permanent residence on the sun. Since neither has happened, she is a loon and can be safely ignored.
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Heh, I have a cat (or more appropriately, I am owned by a cat.) Always fear the cat. They have that nasty "claw, claw, bite" thing going for them, and they are the very definition of crazy.
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Re: Re: Re: Re:
And we also know that Walmart being hauled into court would result in a loss for Walmart, not for actual wrong doing but because of the concept of Walmart is evil. We've seen juries convict people based on perception rather than evidence, if you were Walmart how many photo reprints would it take before you were willing to roll those dice?
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Besides fearing me based on the Nym and Avatar would be a mistake. You really should get to know the person before you run in panic... :)
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Artistic Choice
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Regarding...
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Little Knowledge, Yet Opinionated Anyway
As for the fact that the Second Circuit still upheld the lower decision, they applied the traditional test for copyright to art, which actual has a different standard since 1990, but the law is so new and untested, the courts haven't caught up to its application.
As for all of you nasty individuals who have nothing better to do than to pull a struggling artist down, go create something of your own and then talk. If you knew anything at all, you would know that a great deal of support comes from the art community in favor of Gordon. Like every group of people, that support is separated into camps, but she had reknown experts come forward on her behalf to say that they found there to be significant similarites, and that the paramount elements that make her work "art" were what was taken by this man and presented as if he came up with it all. Also, go study the Visual Artists Rights Act. Maybe then you might actually have something to contrinute to this conversation. That goes for you, too, Mike.
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Re: Little Knowledge, Yet Opinionated Anyway
Did you even look at the photos? You're seriously saying he is guilty of copyright infringement? And as for the experts, "Several experts profess a belief that Plaintiff should prevail in this action while disavowing any familiarity with copyright law." They could be experts in art, or garbage collection, and it would be as relevant to a copyright case.
Also, go study the Visual Artists Rights Act.
"VARA exclusively grants authors of works that fall under the protection of the Act the following rights
right to claim authorship
right to prevent the use of one's name on any work the author did not create
right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work."
So which of those rights are you claiming was infringed? And did Gordon make a claim under VARA? If so, what? If not, why are you bringing it up?
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Re: Re: Little Knowledge, Yet Opinionated Anyway
And it's nice that you can "cut n' paste" VARA, too, but you obviously have no idea or understanding for the laws, how they are applied and how they are interpreted. Go read some other cases, go review the copyright law, go review the congress history. Then come back here with an actually informed opinion.
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Re: Re: Re: Little Knowledge, Yet Opinionated Anyway
If the question is whether something infringes copyright, then yes, the expert had better be an expert on copyright law. Why do you think the testimony of an art expert is relevant to a question of copyright law?
And it's nice that you can "cut n' paste" VARA, too, but you obviously have no idea or understanding for the laws, how they are applied and how they are interpreted.
I never claimed any understanding. I asked you for your analysis of what was violating VARA (since you brought it up), and whether the lawsuit involved any claims under that law. I invite you again to answer those questions.
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Re: Re: Re: Re: Little Knowledge, Yet Opinionated Anyway
As for me explaining the law to you, I'm not your professor. Do the research on your own. If you can't see the obvious application of VARA to an appropriation claim, that's on you. I will give you a little direction, though. Read the third line and then compare it to the act's definition of a derivative work. That should get you started. Then look into how a work can be considered covered under VARA. From there, you should be able to educate yourself properly before you start expounding whatever opinion you may have in either direction.
If you're going to debate and make nasty statements, at least have a sufficient knowledge of what you're talking about. Opinion just for its own sake doesn't present as intelligent discourse. It just comes across as uninteresting and and unproductive.
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