When Is Too Much Copyright Bad For Photography?

- - copyright

I don’t want to get on a jag about copyright infringement here, but a lawsuit filed this week against Ryan McGinley illustrates how copyright can potentially impinge artist’s creative expression if taken too far.

Rachel Corbett of ArtNet.com writes:

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.

There’s a lot of emotion wrapped up in this case as Janine and Ryan have both shown at the Whitney and several prominent galleries where Janine says he had “access to view and examine” her images. Additionally, when ArtInfo.com contacted Janine (here) she says she has been begging McGinley to stop copying her work since the 1990’s through dealer and close friend Chris Perez. Also, noted was an incident according to the complaint in 2003, when she ran into him at a PS1 opening and he responded with “a fearful gasp and speedy retreat into the crowd.” Like I said, it’s very emotional. McGinley’s prints also sell for 4 times the amount of his older more established counterpart.

The complaint alleges that he copied her subject matter, lighting, composition and ideas:

 

There’s no doubt in my mind that seeing Ryan McGinley come up on your heels and churn out similar looking images would be a painful experience. But, this is where copyright hurts photographers. There’s nothing that hasn’t been done before so if you’re not allowed to draw inspiration from and take little parts of other photographers and artists work there’s nothing to take pictures of. I think the case will be impossible to prove in court, but I would guess the point is not to win but to raise awareness, get him to stop and go somewhere else for inspiration.

There Are 54 Comments On This Article.

  1. I don’t think Gordon stands a chance in court at winning this if those two examples shown are indicative of all she is arguing.

    Its like comparing two photographs of trees and arguing that the leaves as compositional elements are too “similar”. I am not an expert but I see no direct infringement here.

    In fact in these two images, the composition and subject matter flat out emote differently. There is absolutely no question that they have different meaning.

    Just my two pence…

      • If that’s the case, then maybe she can show that he is drawing a lot of inspiration from her work. But if we can’t do that we’re all doomed creatively…

      • Hmmm… if you use Jah Jah’s standards, I could find 150 examples of his work looking like my mom’s old snapshots from the 70s, before he was even born:

        “McGinley subject (200?) has two eyes, a nose and a mouth. Mom’s subject (1975) has two eyes, a nose and a mouth”.

  2. Having read the article…I am fully behind McGinley on this. She’s trying to claim infringement on an idea, and that just won’t hold water. He may have took a compositional idea, but who the hell hasn’t? HELLO. Rule of thirds and all iterations is now protected by law? Give me a break. His work is as original as anyone’s under this pretense and he did a better job in my opinion.

    • I agree, there are so many things in which photos could be compared. I could go up to any photographer most likely and compare both of our portfolios together and probably find a pattern

  3. Hmmmm she also had a copyright infringement suit against 50 cent and Dr Dre, so I think the question is how many lawsuits for copyright infringement are too many?

    • Right! Big difference between copying an interpretation of an idea and imitating a style.

      From the U.S. Copyright Office FAQ page: “Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.”

      • Thanks Tim!
        I agree; can’t copyright an idea. The examples photos are NOT COPIES of an existing work.

  4. some dude

    Correct me if I’m wrong but I swear the photo of the 3 guys credited to Ryan was actually taken by Cass Bird for a NY Mag article about Ryan and his friends. He is in the picture. Maybe he kind of art directed it. Anyone agree?

    • yeah I’ve worked with Cass and that is her photo that she took for new york magazine…i think spring 2007

      • some dude

        yeah, thought so. so it makes NO SENSE to use that as an example. sloppy research…

  5. Eric Moore

    Tim Kemple just recently had a blog post on this and got a lot of negative push back from other ‘professional’ photographers. “When Being ‘Inspired’ Goes Too Far” http://kemplemedia.com/blog/?p=985. Tim makes a great case of direct copying of a concept he did for Rock & Ice. The cover of ROCK is an exact copy of what Tim shot. Considering the photographer is in a moving boat with a climbing model also moving, the fact that it is such a close copy is amazing. But opposed to wasting his time in court, Tim made people publicly aware of the inspirational faux pas.

    I hope that Gordon has better examples that what’s been shown because, quite honestly, I don’t see infringement in the examples given. Is it even copyright infringement? Go to any stock photo website and I’m willing to bet that you will find photos that predate these that look even more similar to her examples. Does McGinley use Gordon for inspiration? Maybe. Is he blatantly copying? I don’t think so.

  6. I wouldn’t call this an infringement based on the examples given here. I understand the frustration of another photographer copying your style. There’s a difference between being inspired by someone’s work and copying their style almost verbatim. But, I wouldn’t say that the images are similar enough to warrant an infringement claim.

    In my opinion, this is a much clearer case of infringement. Stella Kramer wrote about this a couple of months ago.

    http://blog.stellakramer.com/2011/05/more-on-photographic-plagiarism.html

  7. LMAO:
    Jah Jah says “legs in a V shape” is a similarity between Ryan’s and her work.
    Um, aren’t EVERYBODY’s legs in a “V shape”?

  8. I love what someone said in Kemple’s blog as a response…

    “Good ideas aren’t exclusive — ”

    Sums it up perfectly.

  9. This is so ridiculous, once he wins, I wonder if he can have her charged with malicious prosecution.

  10. I predict a summary judgment in McGinley’s favor. Each work has to be judged on its own, and I have a feeling the judge will get a little annoyed with 150 of these things, and with the “pattern theory” Gordon is trying to establish. Lawsuits are often about personal animosity rather than right and wrong, and I get the feeling that’s what’s going on here.

  11. Maybe it’s time for Helmut Newtons estate to start suing all of those that have been blatantly ripping him off for the last 30+ years.

    While infringement certainly is a concern the above examples are too generic to show that any image copying was done intentionally.
    And having taken the time to do a Google search before posting here, both of the above parties have a style that could easily be attributed to others before them.

    For that matter I have Polaroids from jobs I worked on in the 90’s that show similar sky back grounds, similar people jumping ETC.
    So should those photographers that shot similar images and had them published in the 90’s sue both of these people for ripping off their blue skies and jumping people?

    I’m pretty sure most everyone has seen the John Huet – NIKE images from the 90’s; or the Marco Glaviano – images of a women jumping threw the sky and/or over mountains from Amica Nov.1995, Rob Van Petten – basketball player flying threw the sky for a slam dunk in a hurricane – Hill Holiday agency – 1992

    I think there’s a difference between ‘Similarity’ and out right theft of an image or creative idea, including lighting, style, camera angle, etc.

    Anyone in the photo industry with the slightest bit of photo history knowledge will be able to find images that ‘Look Similar’ just as easily as we can find those that are complete rip-offs of the originator.

    “In the future photographers will make more money from litigation than they will from shooting.”

    Interesting times we live in.

  12. I have to agree with the general sentiment here. While it seems clear that McGinley is, at least in part, using Gordon’s images as a source of inspiration; it seems far from copyright infringement. If you looked around you could probably find dozens of images, from dozens of photographers, that use similar concepts and compositional techniques. I don’t see how Gordon can claim ownership of the concepts.

    I’m not sure this case is really about copyright protection — which I think we will all agree is a good thing. This seems more about the dark side of having copyright laws — that is: anyone can sue anyone else for just about anything. Then everyone has to lawyer-up and fight it out in court.

    It’s hard to tell the motives in this case. Is Gordon just ticked off because McGinley appears to be doing similar work? Or is she trolling for a settlement? I don’t know either photographer, so it’s hard to say.

  13. Photog Luver

    I’m a firm believer in finding inspiration in almost anything. Gordon should take McGinleys mere inspiration as a compliment if anything. If we are all speaking honestly here aren’t these images and concepts very repetitive of the times I feel like if I searched through an image library I could find several examples of multiple people filling 7/8 of the frame. Arms crossed, hugging, whatever… the image would look funny if their arms were straight down to their side…. although I’m sure someone out there can make that look cool. Is the market really getting that bad that your efforts is spent on comparing your work with others. Spend more time creating new concepts and the compliment of setting a trend and people following your ideas is priceless!

  14. Rob,
    Your headline, “Can Copyright Be Bad For Photography?”, is certainly provocative, but risks causing less-thoughtful-types to ponder the question and perhaps agree. Of course copyright is good for photography – and every other endeavor that generates intellectual property.

    The better question here is whether this frivolous lawsuit is good or bad for Jah Jah Gordon. Regardless of what the court decides about the set of copyright rules and whether McGinley broke them or not, I suspect that the filing of the lawsuit by Jah Jah is a rather well thought out career move. You know what they say: “There’s no such thing as bad publicity.”

  15. scott Rex Ely

    Has anyone verified that Mr. McGinley owns the copyright for the images in question? Where’s Levi Strauss in this equation.

  16. This is like a squabble between siblings. One is tire of the game repeat. There are similarities yet no direct infringement.

  17. Can copyright be bad for photography? In the broadest sense I say no, in this specific instance, I think, that you could even file based on the examples given is ludicrous.

    Larry Clark and Danny Lyon both shot/shoot in an immediate style that predates Ms. Gordon and Mr. McGinley by decades, and then you have Nan Goldin in a very similar vein and more commercially Bruce Webber who, for sure, is the King of “boys snuggling”.

    There is always a prevalent look of a current era that becomes the vernacular, if these two artists are working at the same time in the same medium and the same city I am not surprised that they speak the same language.

  18. I find most images by both image makers on the predictable and boring side, and wonder how important the images will be 30 – 100 years from now.
    If there is no case, (we probably don’t have enough information to come to a conclusion) why would an attorney risk a frivolous lawsuit, with potential punitive demerits?

  19. If the only options were no copyright at all, or todays (American) way of dealing with all rights reserved copyright–I’d choose no copyright at all every time.

  20. Although I’m not a huge fan of McGinley’s hipster porn, her case doesn’t have much merit. I doubt it goes anywhere.

  21. Without seeing all the examples, it’s hard to say how much merit the legal case has. On the surface, this seems to be less a legal case of “copyright infringement” and more of a poor taste pattern of “visual plagiarism”. There’s a huge difference between being inspired by a damn-I-wish-I’d-shot-that! image and actually going out to try to capture the same image for publication or a paying client…

    I know of a newspaper staff photographer that was fired for visual plagiarism because she set up, photographed, and had published an image almost exactly as it had been published previously by a competing publication.

    I have a friend who recently had an go viral that has probably inspired more than a few shooters, though the odds of duplicating it aren’t that great.
    http://tinyurl.com/5vdt8mt

    Finding a creative voice, defining a vision, maintaining inspiration – these are all challenges we face as artists and photographers. To be honest with ourselves, we have to take ownership of our work, regardless of what inspired it. By the same token, when we feel the flattery of imitation comes too close home too repeatedly, we need to call the impersonators out. May we all be so recognizable and successful that we have that problem…

  22. Irregardless McGinley is a hack. Complete garbage. He and his lackluster counterparts are the problem with the art/photo world. The work is boring and aimless, having seen it twice in person I can verify it’s counterproductively to artistic progression. It’s just a joke, you are either in on it or you have the common sense to see through it. Had a discussion with a curator who feels the same way recently where two of his pieces were hanging. He said the work was so poorly done he didn’t understand why the jury had selected it for the show other than for novelty purposes.

    • New York City, for example, is undoubtedly the most highly competitive market for photographers and the photography profession and the state laws and level of experience among the IP attorneys reflect this reality. One firm specializing in intellectual property practically wrote the book on copyright. Further, Janine Gordon has every right to challenge this issue through legal action especially given the circumstances outlined in the Artnet piece and the documented history of direct interaction between the parties involved (yes, a competent IP attorney will pounce of this). This case is about one individual’s protection of the value and earning potential of their work in a competitive, albeit, fickle convergence of fine art photography and the commercial realm.

  23. The headline points to all the recent conflicts over rights, and asks if too much copyright is bad. And we should answer this. Short answer, No, I don’t think so. It’s the same issue with free speech in that there are a lot of horrific abusers of free speech, racists, facists, whatever, but we can’t shut them down without hurting everyone. I’m willing to tolerate some questionable suits like the one you present to protect my right to bring suit someday if I feel truly wronged and can’t negotiate a solution. Copyright laws feed artists and their families. They protect the rights of the individual and form the core of a vibrant culture. Lawsuits provide an opportunity to debate the merits of these laws. As I keep asking my “free” friends, what is the alternative for me to make a living from my photography?

  24. elizabeth

    The best part about the fact that what is said to be a Ryan McGinley image and is obviously a Cass Bird photo (and a very famous one as well, come on!) is that Ryan is actually in the middle of it.

  25. opening a magazine this morning I found a picture of mine copied in concept and composition, different background and different products involved.
    my only thought was: You fool. I did that first. And mine still looks better!

  26. The problem with copyright in art and even science is that to some degree, everything is a remix of things that have come before.

    http://www.everythingisaremix.info/watch-the-series/

    It is no coincidence that both invention and inventory come from the same latin word inventio. We tend to invent new things from our existing inventory of knowledge and experiences.

  27. I don’t think everybody who sets up and publishes a shot taken from one of Ansel Adams or some other landscape photographer’s set up is a copyright infringer. My legal guess is that the law protects against republication of the actual image in some format, but not against independent “replicas” based on the original.

    In literature, the law says there is no copyright in an “idea” – a claim of copyright violation requires transcription of the exact words on the page.

  28. Bill Jobs

    @Keith Green,

    I wasn’t disputing any of that. I simply asked who her IP/Copyright attorneys are.

  29. She is doomed. Some notes from the recent Observer piece: One of Mr. McGinley’s photos of a couple kissing was shot before Ms. Gordon’s comparison photo and this gem “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.”

  30. “Good artists borrow; great artists steal.” — Picasso (by way of steve jobs)

    All artists are inspired by the work of other artists, whether consciously or subliminally IMO.