Inspiration or infringement?


This article, written by Kristen McCallion, an Associate at Fish & Richardson, first appeared in Intellectual Property Magazine.

In August, Judge Richard J Sullivan in the Southern District of New York dismissed a copyright infringement lawsuit filed against the well-known artist Ryan McGinley1. The lawsuit, filed by photographer Janine “Jah-Jah” Gordon, alleged that 150 images comprised of still photographs and video clips, attributable to Mr McGinley, were infringing derivative works of approximately 135 of Ms Gordon’s photographs.

Ms Gordon’s allegations
In pleading her case, Ms Gordon cast a wide net. She alleged serial copying of her photographs by McGinley that spanned nearly a decade, asserting that MR McGinley has been producing works over the past nine years that are based on her “preceding uniqueworks”, and “consciously appropriating and deliberately deriving his works form those originating with” her2. Ms Gordon also sued Levi Strauss & Company, Christopher Perez, Ratio 3 Gallery, Team Gallery Inc, Peter Halpert, Peter Hay Halpert Fine Art, Jose Friere, Agnes Andre Marguerite Trouble, and Agnes B Worldwide3. All had worded with Mr McGinley in some capacity over the years, with Gordon alleging contributory and vicarious copyright infringement. As described by the court, Ms Gordon’s amended complaint set forth “a sprawling history or ‘surreptitious’ copyright infringement4“.

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1. Gordon v McGinley, 2011 US Dist LEXIS 92470 (SDNY 18 Aug 2011).

2. Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, 37[Dkt No 28].

3. Jose Friere, Agnes Andre Marguerite Trouble, and Agnes B Worldwide, Inc, were named in the pleadings but were thereafter voluntarily dismissed.

4. Gordon, at ^3