Thursday, December 9, 2021

Artist Sues Artist, and Galleries, for Copyright Infringement

At left, Janine Gordon, Plant Your Feet on the Ground, 2000, and at right, Ryan McGinley, Levi’s advertisement, 2010

I’m not one of those people that likes to say, “I told you so,” but I told you so. The copyright litigation roller coaster gets more interesting by the minute, especially when it involves an artist suing another artist.

According to Artnet,

Artist Janine “Jah Jah” Gordon has filed a lawsuit in the U.S. District Court for the Southern District of New York against photographer Ryan McGinley for copyright infringement, arguing that 150 of McGinley’s photographs, including several used in an ad campaign for Levi’s, a co-defendant in the suit, are “substantially based” on Gordon’s original work.

Ratio 3 along with Peter Hay Halpert Fine Arts and Team Gallery are also defendants in the suit. Interestingly, New Museum curator Dan Cameron has jumped into this fray arguing on Gordon’s behalf,

“My long-term expertise as a critic and curator gives me, I believe, sufficient authority to say, without hesitation, that Ms. Gordon’s work is completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations[.]”  [bold text added]

Hmmm. I bold the word “derived” in Cameron’s quote to point out what will most likely be — in my educated fair-use opinion — a win for McGinley. “Derive” here is being used not in the fair use sense of “derivative” work, but rather it is being used in the inspirational sense. Based on the images available for comparison online, McGinley is clearly inspired and influenced by Gordon’s ideas, but as both Gordon’s and McGinley’s lawyers agree, ideas are not protected under US copyright law. If, as Artnet notes, Gordon’s lawyers argue that the concept cannot be differentiated from the expression, then they may want to look elsewhere other than copyright law.

Gordon’s lawyers,

“This idea-pattern may be as much part of his work, and deserving of copyright protection, as the brushstrokes, pencil-lines, etc. The true proposition is that there is no copyright in a general idea, but that an original combination of ideas may [be protected][.]”

Think about this for a minute. If what Gordon’s lawyers are arguing were true, then we would never have Star Trek, Star Wars, and Battlestar Galactica. They all follow a similar combination of ideas: good and evil in outer space; intergalactic spaceship warfare; robots, animals, and human beings co-mingling; the end of planet earth; love triangles… You get the picture (pun intended). Arguing that brush strokes and pencil-lines are protected under copyright is a losing proposition, unless you believe — and square that fragile argument with current US copyright law — that only Gerhard Richter can blur color paint across vast amounts of canvas. Gordon may be able to prove access to the work, but unless she can prove actual copying of a fixed idea, there’s no “there” there, and if she waits too long, there may not be much of the settlement either.

Via Artnet.

UPDATE: July 19, 2011

One of the defendants, José Freire of Team Gallery, has issues a personal statement regarding this lawsuit.


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Comments: 4

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  • The only similitude I see in the pictures compared here is a guy looking at the sky with extended arms in the center of the picture.
    Anyone of us can use this element in an infinit amount of contexts such as: religion, grief, UFO search, happiness, etc…
    I totally agree with your conclusions about Star Wars, love triangles, etc. I understand Gordon’s frustration (if there is any, because I have the feeling she and her group are just greedy people), but I hope she won’t win this trial, unless she proves McGinley used specifically Gordon’s photos to create the ad.

    If every artist gets sued by the artists he got inspiration from, then there won’t be art anymore…

    (Sorry for any mistake, English is my second language).

  • I don’t know the case, however from what I read she is suing for a group of photos; 150 photos, so in that argument one should see all the group of the works to determine if there was a matter of “inspiration” or infringement.

    My general recommendation for artist looking for inspiration is to look within; they will find a wonderful source of endless inspiration and will not need too look for it by means of coping other artist works; that is if they seek to reach a master level.

    I, to name one example, am inspired by dali but I do not copy from him; looking at Dali work inspire me to find the imaginative in my own being because Dali master imagination; so there is a great difference between coping and inspiration; I love to study Dali and think his 50 advises rock and a must read once by any artist.

    ” A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, “the test for infringement of a copyright is of necessity vague.”[43] Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method. I believe the US regard it the totality method.

    The subtractive method, also known as the “abstraction/subtraction approach” seeks to analyze what parts of a copyrighted work are protectible and which are not.[44] The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

    The totality method, also known as the “total concept and feel” approach takes the work as a whole with all elements included when determining if a substantial similarity exists.[45] The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.[46] ” Wikipedia.

    I do agree that upon seeing one photo as you expose the claim is not valid, but one must see all the 150 infringing photos to conclude if indeed this is more then accidental.

    As per Artist suing Artist; why does that defer from a designer suing designer or an IT firm suing an IT firm; the law is one for all Authors subject to the copyrights law. Galleries are vendors and they should clear copyright with the artist when they put art in the market other wise they end up creating a general disbelief among contemporary art collectors; galleries are a vendor connecting a deal between that Author and the vendor, they are not the copyright author and their esthetic evaluation may vary and differ to many but such esthetic value is not subject to copyright. If I sell you a stolen or a copy of a DVD it really dose not matter if I believe the movie is a master piece, it will still be a violation of the law.

    I don’t understand how the litigators subject to USC17th end up mixing between pattern and ideas; I think we both agree the swiss runs like a clock;) so I’ll share what the Swiss copyrights office explained to me; idea and concepts are not protected because they are not yet embodied in expression. Expression is protected because it is already manifested and expressed in the material.

    So lets say that I have an idea to create a certain object and I tell the idea to my very untalented co artist who instead of looking into the source of his own creation go ahead steal my idea and creates it before I do; to bad for me because concepts and ideas are not protected; so next time I better choose my artist friends or like my Prof. said ; no ones enters the studio, but the master himself.

    But, if I created the object and my very untalented to shame ‘artist’ make identical or a substantial similar object then he is acting without a license and is in breech of my rights.

    That’s basic idea/ pattern subject to the Berne;

    I would like inform you that I ” ” parts of your article about appropriation and Donn Zaritsky at my website; where I publicly inform of the copyright infringement made by Ken Price who is using VA1-745-151 copyrights registration subject to my sole Authorship.

    VA1-745-151 presents a painting expression that unlike in the case discussed in this article is not relative to any prior expression; VA1-745-151 meets the Berne first stet being it “certain work” a new to the art history painting expression; one of a kind; Original as original can get; at date of creation to be applied on 2D and 3D objects.

    I thought your article was good and pointed rightly all the major elements of fair use or better say unfair use which are in that manner step no. 2 and step no.3 of the Berne 3 steps test;

    My copyright infringed by Ken Price meet the Berne 3 steps test; I invite you to visit and voice opinion;

    In the case that I am not allowed by law to ” ” your writings do advise below is my contact.



  • p.s. don’t get me wrong artists you can be inspired by Dali and paint surrealism; Personally I like it all and used it all; monochrom to realism; the expression=( pattern in cases of abstract painting) is protected not the movement

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