Tuesday, July 19, 2011

Under the Influence

It's not quite the epic drama that the crumbling Murdoch empire is providing, but another case of an artist suing another artists over what they see as their intellectual property being stolen has not only made it to the courts, it has generated an extraordinary letter from the defendant's dealer.

But let me back up. It's first important to understand that this lawsuit offers a new take on the theme of what is original and therefore copyright-able.

Artnet.com's Rachel Corbett broke the story last week:
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.

According to Gordon’s complaint, the trouble began nearly 10 years ago, when both Gordon and McGinley had exhibitions at the Whitney Museum of American Art -- Gordon in the 2002 Whitney Biennial, and McGinley in his break-through solo exhibition “The Kids Are Alright” the following year. McGinley’s proximity to Gordon’s work “during the preparation and display of the Whitney exhibition in which he participated,” her lawyer argues, gave him “total and complete access to view and examine the Gordon images featured in the 2002 Whitney Biennial.”

Both parties have also shown at the Schirn Kunsthalle in Frankfurt as well as at Ratio 3 gallery in San Francisco; Ratio 3 along with Peter Hay Halpert Fine Arts and Team Gallery, which show McGinley's photographs, are also defendants in the suit. Gordon's complaint alleges that the galleries “had the right, authority and ability to control or supervise McGinley’s actions, failures and omissions.”

McGinley’s guilt was compounded, at least in Gordon’s mind, in 2003, when she ran into him at a PS1 opening and he responded with “a fearful gasp and speedy retreat into the crowd,” according to the complaint.

Among the disputed images is a black-and-white shot of a woman flipping her head back, hair in motion. Gordon’s lawyers say that McGinley’s photo, taken 15 years later, copies her subject matter, its centered composition and its spotlighting, which in both cases illuminates the left side of the body and shadows the right.

The defendant's lawyers have stated that the images in question “do not look alike in the slightest.” And based on the example used at the top of the Artnet.com article, I would say that any comparison seems definitely overshadowed by the thousands of differences:

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

But reading further, we learn that it's not her images that Gordon is saying were stolen, but rather her ideas:
Gordon’s lawyers...are putting forward a relatively expansive interpretation of copyright law, arguing that concept cannot be differentiated from expression. “Unless an artist is content merely to represent a pre-existent object (e.g. a building) or scene, it is part of his task as artist to exercise his imagination and in so doing he may create a pattern of ideas for incorporation in his finished work.

"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],” Gordon’s complaint argues, citing the copyright reference book The Modern Law of Copyright and Designs.
The image above is the most similar of the ones Artnet juxtaposes (scroll to bottom of that article to see other comparisons), but yes, the two figures are in relatively the same pose. But that looks to me like its only similarity. Artinfo.com provides more side-by-side comparisons.

I found all this very interesting of course, feeling strongly that all artists benefit from as loose a definition of "fair use" of copyrighted materials as possible, and not being at all sure that we're even dealing with "fair use" in this case. The images seem so different. Moreover, the notion that "ideas" (as opposed to "concepts") can be copyrighted could bring all art production to a screeching halt. More on that distinction in another post...

But that novel approach to a infringement suit is nothing in comparison with the statement McGinley's New York art dealer, Team Gallery's José Freire, eventually released on the case. It's both a beautiful testament to the gallerist-artist relationship and a fairly convincing dismissal of the merits of Gordon's complaint. Published by artnet.com, here's but a snippet:
A photograph captures a specific moment in time. A photograph of one girl does not equal a photograph of another girl. McGinley is not a re-photographer. He is an artist who creates dynamic situations in which sometimes thousands of photographs are taken and only one chosen. His editorial choices – which photographs he chooses to actually produce – are, of course, informed by his encyclopedic knowledge of the field in which he works. The photographers that he admires, whether well known or anonymous, have always been openly discussed in his numerous interviews. Gordon’s name has never been among them because she is, quite simply, not an artist he thinks about.
That last line actually resonates more when you read the previous explanation of McGinely's influences:
Among the artists named in reviews and essays about McGinley over the years one will find: Richard Avedon, Robert Mapplethorpe, Irving Penn, Man Ray, Alfred Steiglitz, Peter Hujar, Edward Weston, Catherine Opie, William Eggleston, Ansel Adams, and Dash Snow. Janine Gordon’s name has never once appeared as a comparison. These references, by numerous preeminent critics and curators, were not made to cast doubt on McGinley’s artistic process but rather to describe the status to which his work aspires. McGinley’s photographs sit within an art historical context and, as his art develops, this context becomes larger. The number of photographers to whom his work relates grows exponentially as he continues to move in different directions. Likewise, the number of younger artists whose work now bears the strong mark of McGinley’s influence also increases.
I've always maintained that the "importance" of any artist is best measured by the number of other artists he/she influences. The original report notes that McGinley was in a position to see Gordon's work up close during the installation of one show, but it seems to me a stretch to suggest that means he's spent the same amount or more time looking at Gordon as he clearly has Goldin, Opie, Clark, Tillmans, Pierson, and Snow. And the list could go on. The approach reflects, as Freire notes, a zeitgeist.

The letter gets much more interesting than that, however.

A dealer friend of mine refers to herself as a "Momma Lion" when she explains the ferocious way she protects her artist "cubs." I sense of bit of that impulse to project your artists in Freire's extraordinary take-down of Gordon as both an artist and a citizen:
I had done a studio visit with Gordon in the late 90s and found the work not only ingenuous and derivative but also so badly produced that it appeared, to my eyes, unmarketable.

Gordon has repeatedly sent emails that attack McGinley’s integrity; emails that claim he is a thief; emails that actually threaten him with physical harm and, in several cases, with death. She has acted more like a stalker than as a fellow artist. Her case has so far cost the defendants (who include the artist and three galleries that have exhibited his work) somewhere north of 100,000 USD in legal fees. And it hasn’t even gone to trial yet. Gordon, it seems, is quite litigious. She has in the past sued rappers Dr. Dre and 50 Cent for having stolen lyrics from her.

Of course, Gordon, like everyone else with a complaint has the right to have her case heard in court and not tried in the pages of magazines or blogs. I'm quite sure there is more than one side to this story. Stay tuned....

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Blogger George said...

I for one hope this goes to trial.

7/19/2011 09:17:00 AM  
Anonymous Anonymous said...

"Copyright laws are terrible for culture. It’s illegal to respond to the imagery that surrounds you; you’re bombarded every minute of the day with mass-media sludge. It should be the opposite: Everybody should have to respond to it. This is what should be taught in the public school system."

I'm not the biggest fan of Mike Kelley's work, but he's got an interesting take on the issue."

Unlike the Prince issue, McGinley is actually not even using anywhere near the same image. Pose and gesture may be similar, but last I knew you couldn't copyright that.

7/19/2011 03:06:00 PM  
Anonymous Anonymous said...

what suprise me most is that Dan Cameron supports Gordon and calls McGinley's work largely derivative...
If you take derivative as meaning derived from some prior precedent, then of course all art is derivative and Cameron's claim to Gordon being completely original is a massive joke.
Personally I like how McGinley has in some degree riffed off of Gordon's images without actually "copying" her - whatever that means.
In a sense much of all abstract work is infringing upon Ab-Ex ideas, but who's silly enough to claim copyright infringement on that one.

7/19/2011 03:18:00 PM  
Anonymous Anonymous said...

Brian Sherwin here.... Ed, you know how much I am a bulldog for copyright. That aside, I must say that from what I've observed there is no grounds for copyright infringement in this situation. This is like saying that an artist can own a specific pose -- or variations of a pose... and that is dangerous.

7/19/2011 04:28:00 PM  
Anonymous Anonymous said...

Brian again -- Furthermore, you can't copyright an idea... nor can you copyright an artistic style. Those are basics of copyright that any first year law student should know.

I want to see copyright protected -- but this is absurd.

7/19/2011 04:30:00 PM  
Anonymous Dread Scott said...

Regardless of the individuals involved or whether McGinley actually derived his work in some way from Gordon, Gordon's claims and those of her lawyers have far reaching implications. The notion that you can copyright an idea pattern is expansive and will greatly limit the expression of ideas. Copyright is about the the capacity to commodify ideas (or more specifically, specific expression of ideas) and in doing so limit the ability of others to express them. As it stands the current interpretation of copyright restricts many artists and if today's logic were applied in the past would have prevented Pop art from even happening. The expansive notion that an "idea pattern" is copyrightable and in doing so would prevent others from having a similar pattern is something that artists, and anyone who values intellectual ferment should be very wary of.

7/20/2011 10:37:00 AM  
Blogger DarthFan said...

I saw a lot of this sort of thing in a Meat Puppets video years ago, or so I believe. I admire the chutzpa of an artist who can barely afford rent to sue anyone. Who do they think they are? On the other hand, portfolio 101 says include only your strongest work, and Janine didn't do that. She needs a PR person, if only to edit out the emoticons. If this is just a PR stunt I will be deeply saddened—the state of the underground is truly grasping at straws. Not that I'm a part of the underground, or the scene, honestly I don't even know where it's at, looking at the world from sleeper cell one.

7/20/2011 10:40:00 AM  
Anonymous Anonymous said...

Nothing like the wrath of a scorned woman. Once the lawyers get involved everybody is fucked.
If she wins wtf will happen to the art world???

Dude. Meat Puppets own. They grew up in my neighborhood .

7/20/2011 11:16:00 AM  
Anonymous Anonymous said...

I think Dread Scott hit the number one concern - being the copyright implications of an idea pattern. This is similar to musicians attempting to claim copyright of a given chord structure or melody when ion reality there are infinite variations of these idea patterns.

7/20/2011 02:20:00 PM  
Blogger George said...

The worst thing that can happen would be an out of court settlement.

This would leave the spurious copyright claims in limbo to be used again until there is a clear court ruling.

7/20/2011 06:42:00 PM  
Blogger DarthFan said...

Yes anonymous, you are right. The Meat Puppets do rule. This Janine character seems a bit ego driven - she is handling the situation like an amateur. But I believe the difference between good artists is about 5% - certainly I could compare her work favorably to a bunch of well publicized dudes. Still, I don't think it's all that. The Zeitgeist for party picture well may be - but I was just loking at a bargain table book on woodstock (CCR played at 2;30am to a crowd of sleepers) and the pics are totally fresh in the same way that an Urban Outfitters catalog usesphotoshop gratient overlays to fake darkroom chemical experiments. W eknow people are influenced by rock photographers, but no one credits them, because they are not ART. I don;t know that it matters to me if you are conscious or not - self reflexivity is overrated!!! But also, I saw andrew Dice Clay (he has a lazy eye too!) and even though I don;t think he's the best comedian, I was impressed that he will be playing Atlantic City in 2011. You got to respect that, even when you got no respect.

7/20/2011 09:28:00 PM  
Anonymous Mery Lynn said...

If two finger touching of a phone screen can be copyrighted, why not an idea?

If Sarah Palin's name or "Planet" in the name of a restaurant can be copyrighted, why not an idea?

What I am suggesting is that the notion of copyrighting needs to be rethought as it is applied inconsistently.

7/21/2011 06:55:00 AM  
Blogger George said...

So Mary, precisely what is miss Jah Jah copyrighting?

• "centered composition?" whoo whee nobody ever did that before.

• Spotlighting from the left? (highlights left, shadows right) -- that's original too, what about right spotlighting? or full frontal flash (invented about the time of Manet)

7/21/2011 10:25:00 AM  
Anonymous Anonymous said...

Good to see Jose Freire's passionate and articulate letter distributed widely around the web; it has generated some smart discussion around things like "zeitgeist" and "style" and "referencing" in art, and this has been one of many interesting comments threads.

As for going to trial, it may be worth noting that plaintiff's legal team is not particularly versed in copyright litigation:

“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..."

I would hazard that Hilton et al.'s radical claims (in view of existing law) about "idea patterns" appears as a bit of a stretch because they don't really know what they are doing.

What no one is talking about, since we are all focused (as we should be) on the meaning of copyright and the implications for art, are the troubling threats of physical violence coming repeatedly from plaintiff. I've been threatened with physical violence myself by Ms. Gordon, for openly criticizing her claims in this suit. Even more troubling, at least one commentator on my site has likewise received email threats from Gordon for challenging her (she went to the trouble to hunt this commentator down.) Ms. Gordon uses what may appear to be old-fashioned bluster, but I take it that she's serious, and when Jose Freire mentions "death threats" he is serious too.

My question is not so much "will this case go to trial?" as "when will Team Gallery staff and Ryan McGinley apply for that restraining order?" Also: what do you do when you are intimidated with violence for expressing your opinion? Sadly, the thinking behind the threats -- or lack of thinking -- may well be the all-too-real other side of the story...

Real Anonymous Coward

7/21/2011 10:58:00 AM  
Anonymous Anonymous said...

It appears that someone is quite disappointed because someone else has reached the stratosphere and someone is left holding an umbrella in the rain. I am sure someone with exhibit more of her photographs after this issue is contained.
Do we really need to look back at classical painting composition to determine what is not copyright infringement in contemporary photography?

Oh, and George 10:25 I like your comments.

7/21/2011 11:24:00 AM  
Anonymous Anonymous said...

I sympathize with Jah Jah. But...This could create a cottage industry for the lawyers. And people would write books about IT .How the Lawyers destroyed the art world volume I, 2011-2021.

Every Blue Chip gallery and artist in Nyc should be cutting a check to The Team Jose Defense Fund.

7/21/2011 11:31:00 AM  
Anonymous Anonymous said...

What about satire? McGinley may not be mocking or satirizing Gordon, but I can't help but laugh at the comparision between the images - and yes McGinley's work is way better!. As a form of commentary and expression I beleive that it is in an artist's full rights to draw comparisons with other artists work both directly and indirectly. It seems that Copyright and Freedom of Speech/expression (a constitutional amendment by the way) have a serious difference of opinion in this debate. As an artist I'm more for free expression than I am copyright protection... but I don't make tons of money off of my work, so I'm more of an idealist than a businessman. And besides, if someone wants to be influenced by or riff on my work, then I move forward and adjust my moves...the art world is a dialogue afterall.

7/21/2011 05:14:00 PM  
Anonymous Franklin said...

Intrigued by, though dubious of, the possibility that Dre or 50 wouldn't be where they are if not for stealing lyrics from a white girl, I sought out Ms. Gordon's musical work. I can say with some surety that it sucks floor tiles. Normally I don't like drag artistic quality into a discussion like this, because the legal argument stands or falls on its own, but this is some of the lamest flow since William Shatner recorded "Lucy in the Sky with Diamonds."

Searching also turned up a 2007 report from EG Radio saying that, in an interview with the selfsame bastion of music journalism, Jah Jah had "thrown many industry cats under the bus" including "50 Cent, Eminem, Justin Timberlake, and Fergie." Fergie came in for particular rebuke. Ms. Gordon said that Fergie "sounds EXACTLY like she is attempting to recreate my TOTALLY original voice in 'Here PussyPussy'," emphasis Ms. Gordon's. The hip hop world is no stranger to feuds - who can forget the firey exchanges between Eminem and Moby - but they don't usually take place between musicians of such disparate levels of skill. Also, Fergie seems not to have responded.

In conclusion, here's yet another example of how contemporary art is a sheltered workshop. (For ear bleach, which you're going to need if you played any of the tracks at the Jah Jah MySpace page: Beastie Boys feat. NAS.)

7/21/2011 06:19:00 PM  
Anonymous Anonymous said...

the copyright fight looks stupid and lost... but i have also read that she claims another dealer both she and mcginley worked with perez whatizname gave mcginley hundreds(?) of her images to work with... what is the take if a dealer has two artists doing similar work and effectively colludes with one (more manageable) artist to shut out and down the other?

7/22/2011 11:01:00 PM  
Anonymous Gam said...

there is a reason why we have the two words copyright and plagiarism. Form and content, ideas and actions are really, really distinct. Trying to merge them is like playing with two sticks of plutonium. Don't.

I know the non-visible museum (http://twobodies.com/nonvisiblemuseum/) probably has sold more non existent art then I in the last week, but its merit is really questionable in my view.

As M McLuhan has long ago pointed out (historical figures are our contemporaries) concerning art:

To return to art and formal causality for the moment: a formal cause exerts its pressure non-verbally and non-conservatively. Any substantial form impresses itself upon you without benefit of awareness or conscious attention on your part. You can be conscious about it if you like, but a tree, grass, stones, the world of forms in which we live impresses us steadily and constantly without intermission, without benefit of words it thoughts. They are total in their action upon us. It doesn't matter what theory we may have about them: their effect upon is quite independent of any thought we may have about them.\
It is the same with a work of art. The meaning of a work or art, as the artists of past centuries can tell us, has nothing to do with what you think about it. It has to do with its actions upon you. It is a form: it acts upon you. It invades your senses. It re-structures your outlook. It completely changes your attitudes, your wave-lengths. So our attitudes, our sensibilities, are completely altered by new forms, regardless of what we may think of them. p38

And their effect upon us is that of forms, not ideas or concepts.

The guy reveled in ideas,he isn't putting them down, but he understood art was a thing - that only things are beautiful, not our reaction to them, and that arts action upon us was of a thing, unspoken, unburdened by meaning of content, (or theory) but that of a form which either enhances the world or not.

Wanting to shift art to solely the realm of thought, loses all of the possibilities that form permits.

Art is a wonderful thing.

7/24/2011 07:49:00 AM  
Anonymous Bernard Klevickas said...

Right on Gam!
Thank you for posted this M. McLuhan Quote.
It speaks to the power of objects and not the rhetoric behind them.

7/24/2011 02:38:00 PM  
Blogger CAP said...

@Janine: It's hard to live with jealousy. Jah Jah needs to quit Babylon as I and I will say and carry the swing where only she know. Bim!

So they liked Ryan better - Janine this just means you've got to take your 'vision' somewhere else. Take heart from Andy Warhol's example - upon learning that Roy Lichtenstein had started painting comic strip frames a little too much like his own - Andy just turned around and went on to silkscreens of Campbell's Soup, pretty soon moved on from graphics to photography!

That is N E R V E supersize. That is ambition at its most undaunted. Inspiring.

The Lesson: there is always a whole lot more there than you think - someone else closes down one door for you - that just means time to look for the next one. And the doors only get better.

The lawyers thing is just stupid and sad. You think Ryan lost you money? That's nothing to what lawyers/courts will do to you.

Give It Up and Turn It Loose!

7/28/2011 09:33:00 AM  

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