The McGinley camp has been aware of Ms. Gordon’s allegations for the past few years. She’s reached out to former interns, asking if they’d ever seen Mr. McGinley with her photos or, as one message read, “printouts of ‘something’ on his photo shoots.” One source close to Mr. McGinley, who declined to speak on the record because of the lawsuit, described it as a “Valerie Solanas-Andy Warhol situation,” and said for a period Mr. McGinley considered filing for a restraining order.
“Thanks for seeing this,” she wrote on the wall of a Facebook group comparing her photos to Mr. McGinley’s last year. The message was a response to a fan who said he hoped she could soon end Mr. McGinley’s alleged infringement. “I hope I can do it legally—because if it comes down to physically stopping him—he is going to get hurt—the gangsters and thugs in many of [my] photos are my friends… :).”
She also compiled an email that she sent to art world contacts to build momentum for her case. The bulk of the email contains Ms. Gordon’s standard side-by-side photo comparisons, but it also features written asides about Mr. McGinley.
“NICE JOB RYAN—u get an A in STEALING11,” she types before moving onto the next set.
“OK_ lets look at art history,” she writes after another comparison. “PLEASE name one artist who was so similar to me BEFORE I started showing—and you will see that I am the one being stolen from ALL THE TIME BY THE SAME PERSON!!!!!! IVE NEVER DONE THIS TO AN ARTIST IN MY LIFE!!! HOW DOES HE GET AWAY WITH THIS.”
Despite the extensive research done in compiling it, Ms. Gordon’s ultimate evidence packet features a few questionable comparisons. Some 50 images come from video stills, many from the Levis commercials, which is significant only because Ms. Gordon puts such emphasis on body positioning. One of Mr. McGinley’s photos of a couple kissing was shot before Ms. Gordon’s comparison photo. Exhibit 120 shows a Gordon photo of three boys lying in bed together and contrasts it with a photo said to be Mr. McGinley’s that is actually of Mr. McGinley, with Dan Colen and Dash Snow, taken for New York magazine not by Mr. McGinley, but by the photographer Cass Bird.
“No, we don’t do much copyright litigation here,” said Tony Hilton, one of Ms. Gordon’s lawyers who said another client referred her to him. “But the law is the law, you know, and while I agree experience is extremely important in anything you do, everything is set out black and white in a book with regard to standards. All the law is referenceable from case law.” One case he said was particularly useful, in their response to Mr. McGinley’s recent motion to dismiss, was Mannion v. Coors Brewing Company (2005), in which a model’s pose in a beer ad was found to be illegally similar to an earlier photo of Kevin Garnett.
“I would come down on McGinley’s side,” said Mary Dorman, who represented photographer Thomas Mannion in that case. “In my case the jury found really quite quickly substantial similarities because the model was similar, the pose was similar, the lighting, everything. It was clearly a copy. These images are very, very different than that. They have the general concept—a body flying in the air or a kiss—and those themes are general themes.”
Jack A. Gordon, a lawyer for Mr. McGinley, says he expects a dismissal within the next few weeks, if not days, but Ms. Gordon’s case does at least seem to be closer to a favorable verdict than was the last copyright lawsuit she filed, in 2005, which drew from her career as a rapper—she’s made six albums since 2002 and is at work on a seventh—and had her suing both 50 Cent and Dr. Dre for $20 million.
Ms. Gordon is respected as a photographer: her work appeared at the Whitney Biennal in 2002. But those who defend Mr. McGinley’s work say he would not have brazenly copied from a fellow artist.
“What’s always impressed me about Ryan’s work is that he does do that homework,” said Kathy Ryan, photo editor for The New York Times Magazine. “The fact that he’s aware of the images made before is a good thing because it’s naïve to decide to make a picture of a body falling through space or something and think you’re the first person to do it.”
“There are certain things in youth culture photography that come up again and again but from my point of view Ryan has been sort of definitive in a way that Janine has not,” said Vince Aletti, who writes about photography for The New Yorker. He said he owns two prints by Ms. Gordon and was familiar with her long before he encountered Mr. McGinley. “I sort of hesitate to take sides in this because they’re both interesting artists in their own way but I think [the lawsuit is] a wrongheaded thing.”
It may have cost Ms. Gordon some potential art world allies. Gallerists who have been dropped from the suit are annoyed about the legal fees, and about what her lawsuit tries to say about Mr. McGinley.
“The photographers that [Mr. McGinley] admires, whether well known or anonymous, have always been openly discussed in his numerous interviews,” recently dropped defendant José Freire, Mr. McGinley’s longtime dealer and owner of Team Gallery, wrote in a statement. “Gordon’s name has never been among them because she is, quite simply, not an artist he thinks about.”
“Her lawyers have said, ‘How can you go after her for attorneys’ fees if and when you win your motion to dismiss?’” Mr. Gordon, the lawyer for Mr. McGinley, told The Observer. “‘That’s not fair because she’s on food stamps and is trying to scrape together money on a month-to-month basis to pay rent on her rent-controlled apartment.’ Yeah, not my problem. Maybe she should think twice about bringing frivolous lawsuits.”
Lea Freid, of the New York gallery Lombard-Freid Projects, curated a show featuring Ms. Gordon’s work this spring but declined to make any comparisons between Ms. Gordon’s work and Mr. McGinley’s. She chalked the whole lawsuit up to artists being given the opportunity to work more and more in the mainstream where the stakes are potentially higher—ad campaigns and, she said, and The New York Times Magazine, though she wasn’t referring to Mr. McGinley specifically.
“I think there was a marked change in terms of artists being given that opportunity,” Ms. Freid said. “I think that’s a huge difference and I think before when artists worked together and had the same galleries, there were overlaps and it didn’t matter that much because there was a community. I think that community is a lot more dissonant these days.”
Update 7/20 Corrected Ms. Gordon’s age.