Sometimes, a picture’s worth a thousand words. Other times, a handful of them are worth a 10-page decision document.
A judge in the Southern District last Thursday threw out the copyright infringement lawsuit against the artist Ryan McGinley. The lawsuit, filed by another artist named Janine Gordon this February, alleged that around 150 of Mr. McGinley’s images copied Ms. Gordon’s own photographs in some manner, including composition, subject matter and aesthetic themes.
The case was always a bit far fetched. For instance, Ms. Gordon circled areas of similarity, or superimposed objects to show how similar would then be (Those breasts? Put a peacock head over them. See how similar they are?) Her credibility was not helped by the fact that among the many pieces of evidence was a photograph taken not by Mr. McGinley, as advertised, but actually of him, for a New York magazine cover story.
“I am pleased that Judge Sullivan wrote such a well-reasoned and well-written decision,” wrote Jack Gordon, a lawyer for Mr. McGinley. “I am also delighted that Ryan will no longer be distracted by this misguided and frivolous lawsuit.”
Judge Sullivan’s doubts about the case seem to go back to April. In a just-released transcript from a meeting with both parties in that month, he seems exasperated with trying to see the similarities between two photographs described by the plaintiff’s lawyers as very similar, among the best evidence in their case.
When Tony Hilton, a lawyer for Ms. Gordon, complains that the judge is pointing out only “the very most basic elements” of the works, Judge Sullivan rebuts, “Well, you know, you can go to the MoMA and have this conversation, but I really do think this is about as basic as it gets, and I don’t think that this is copyrightable; or, to the extent it is, that it is infringing on an original work. So I don’t know that there is much more to say about this and, frankly, I am inclined to just pack it all up, attach it to an opinion that I will issue, and then you can take it to the Court of Appeals and explain to them. They are probably smarter than I and certainly have more time to go to the museums than I do. I have other real disputes between parties, and this one strikes me as not a serious one.”
According to the judge, the photographs have little in common but the fact that they both feature nude women.
In fact, Judge Sullivan relied heavily on Ms. Gordon’s own visual evidence in dismissing the case. After a lengthy breakdown of the photographs, he wrote in the court’s opinion that the “plaintiff’s apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, an interracial kiss, or any nude female torso.”
“I think Playboy is going to sue you both,” he says in the transcript. -Dan Duray
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