McGinley Copyright Case: Infringement or Inspiration?
Christina Dideriksen for COMPANY
(July 14, 2011) The world of new media and art is getting more complicated. Just last March, a US district court found in favor of photographer Patrick Cariou against artist Richard Prince for copyright infringement. Now Ryan McGinley is under fire from artist Janine “Jah Jah” Gordon.
Artnet’s Rachel Corbett broke the story earlier this week that Gordon has filed a lawsuit against McGinley, arguing that 150 of McGinley’s photographs, including several used in lucrative Levi’s ad campaigns, are “substantially based” on her original work. Levi’s has been named co-defendant in the case.
The question is, when it comes to “art” in the 21st century, what exactly can we claim as our own? This is an issue particularly sticky for emerging and new media artists and their collectors. Digital mediums and a culture of “mashups” make it far easier to lift straight from an old piece to a new one, than days gone by when artists relied only on their own eyes and fingers to replicate and reimagine art.
In the Prince/Cariou case, Prince freely admitted to using at least 41 of Caiou’s “Yes Rasta” photos within his own work, but claimed “fair-use” for transforming the originals in his collages. Cariou argued that Prince’s “Carnal Zone” series had reappropriated without his consent. Though the judge’s decision against Prince will potentially have far reaching consequences on other mash-up style artists, this new case has more nuanced implications.
Copyright protects “original works of authorship,” but does not protect ideas or “methods of doing something.” Copyright.gov specifically states that though you can make a piece of art expressing your ideas, the copyright “will not protect the idea itself as revealed in your written or artistic work.”
This is the heart of McGinley’s defense: “Plainly Gordon has no claim to ideas as general and unprotectable as, for example, an interracial couple kissing; a person gazing skyward with outstretched arms; or a man riding on a spotted horse.”
Gordon’s argument relies on “idea-patterning;” stating, “there is no copyright in a general idea, but that an original combination of ideas may [be protected].” Just how many “ideas” it would take to create a copyrightable pattern is clearly an issue worth understanding. Blogging for Conscientious, Joerg Colberg put together some idea-patterns himself: Gordon’s Plant Your Feet on the Ground (2000) on the left, a random religious image in the middle, and one of McGinley’s Levi’s advertisements (2010) on the right.
Unfortunately, the case is also filled with all the drama of David E. Kelly episode. Often exhibited together, both artists have shown at the Whitney and other prominent galleries. When ArtInfo.com spoke to Gordon, she said she has “begged [McGinley] to stop” copying her work for decades. She also recalled a PS1 opening and where the two saw each other and McGinley made “a fearful gasp and speedy retreat into the crowd.” Then there’s the money. In addition to his lucrative Levi’s campaign, McGinley’s prints can sell for 4x higher than Gordan’s. Throw in an affidavit by well known curator Dan Cameron in support of Gordon, which states “My long-term expertise as a critic and curator gives me, I believe, sufficient authority to say, without hesitation, that Ms. Gordon’s work is completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations.” Maybe we’ll get some answers after the next commercial break.
Whatever the outcome, part of being an artist will always be about testing boundaries. The tools at their disposal will only get better and the pool of influencers can only get larger. This certainly won’t be last time an artist is sued.