Article: February 2013 Entertainment Litigation Update

Second Circuit Steers Away from Strict Copyright Protection in the Photography Arena. According to well-known photographer Janine Gordon, rival photographer Ryan McGinley copied more than 150 of Ms. Gordon’s contemporary images in a series of advertising campaigns in violation of copyright law. The U.S. District Court for the Southern District of New York disagreed. See Gordon v. McGinley, et al., 2012 U.S. App. LEXIS 23273, *2-4 (2d Cir. Nov. 13, 2012). Ms. Gordon has established herself as a major photographer in the art world, with exhibitions at prominent venues, including the Whitney and Hammer museums. Mr. McGinley also has received critical and commercial acclaim in recent years, particularly with respect to a series of advertising campaigns for fellow defendant Levi Strauss. According to Ms. Gordon, the images used in Mr. McGinley’s Levi Strauss campaigns, and exhibited at various defendant galleries, were substantially similar to her copyrighted photographs. Ms. Gordon pointed to examples such as an arm gesture at a right angle in one photograph, and a naked, tattooed body laying at a similar angle in another. Mr. McGinley countered by stressing the differences between his and Gordon’s photographs—such as the use of different colors, clothing and physical appearances. The District Court agreed with Mr. McGinley, finding that there was no substantial similarity as a matter of law because the differences in the works outweighed the similarities. Accordingly, it granted Mr. McGinley’s motion to dismiss. The Second Circuit concurred, holding after a de novo review that the District Court’s dismissal of Ms. Gordon’s federal copyright claims was proper.

The Gordon ruling has special resonance within the arts community, where artists must calibrate new works based on the degree to which those works can contain or reflect content from other artists’ works. The Second Circuit has now indicated a willingness not only to protect visual artists from copyright claims regarding tangentially similar works, but also to dispose of such claims at an early stage in the litigation process.