Under the Influence
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.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:
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.
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.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.
"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.
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.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....
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.