Gordon-McGinley Copyright Case: "Wasteful course of litigation"

Gordon-McGinley Copyright Case: "Wasteful course of litigation"

Christina Dideriksen for COMPANY

(August 20, 2011) Gordon begged, McGinley gasped, and friends took sides, but Judge Richard Sullivan only sneered. Last Thursday Judge Sullivan tossed out JahJah Gordon’s copyright infringement lawsuit against artist Ryan McGinley.  The photographers’ dispute over who inspired who instigated much chatter over the interwebs, including our own discussion on the future of new art that uses “mashups,” “data- moshing,” and other re-imaging of media.

Gordon had submitted 150 of McGinley’s images compared with her own.  You can almost hear the implied sigh of exasperation throughout the 10 page decision, as when the Judge states “the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity” and that the Court “declines to conduct an exhaustive inventory of the 150 allegedly infringing images.” 

He also pointedly states what many have questioned that this theory of infringement would “undermine rather than promote the most basic forms of artistic expression.” He goes on to chastise both Gordon and her attorneys: “One might have hoped that Plaintiff - an artist - would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.”  

The judgment couldn’t have been that surprising. Apparently, in a transcript from an early meeting between the parties, Judge Sullivan said “Oh, I think Playboy is going to sue you both.”

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