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Saturday, July 23, 2011

Inspiration vs Copyright Infringement

Michael Zhang asks the question "At What Point Does Inspiration Turn Into Copyright Infringement?" Namely, if an artist is inspired by another artist and uses similar elements or lifts pieces from another artists work, how similar do the works have to be for it to count as copyright infringement? For example, if you love the character of Jay Gatsby and wanted to create a character based on him, would it be copyright infringement if your character is a newly rich man in love with a woman from old money? what if he had fallen in love with her when he was just a poor soldier? what if he became rich working for the mob? what if his name is Jay? Where exactly do you draw the line?

The example that Zhang points to is not a good example. Janine Gordon is suing photographer Ryan McGinley claiming he stole photography ideas from her and that his works represent blatant copying, but the similarities between their photographs seem superficial.

Mike Masnick, I think rightly, points out, "Honestly, it's difficult for me to even say that McGinley's are 'inspired' by Gordon's, let alone copies."

José Freire, a gallery owner who's worked with McGinley responded in more detail, saying:
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.
Gordon’s claims for originality are extraordinary: she claims to have invented, among other things: visible grain and other errors in the image; the injection of the monochromatic into photography; the depiction of chaos; the use of smoke; the documentation of sub-cultures; and certain types of rudimentary composition (such as placing figures in the center of the page; or in a dynamic relationship to the edge of the image). She even appears to lay claim to “the kiss” as a “concept.”
[Gordon] states that there are 150 instances of “copyright violation”, however, these include numbers of images which are video stills taken by persons other than McGinley during extensive commercial shoots, pictures not even taken by McGinley, and images which resemble each other only if cropped; rotated; inverted, rendered in grayscale, or otherwise dramatically altered.

We are confident that Gordon’s case has absolutely no merit whatsoever and that her litigation will ultimately do more damage to herself than to McGinley.
That last point is important, not all the 150 examples of supposed infringement are actually photos taken by McGinley, including the fourth image embedded above, of the the three people laying on the bed. And, unsprurprisingly, Gordon has a history of such lawsuits.

Nonetheless, the question still stands. How different do two works of art, or even elements within a work of art, have to be, to be considered inspiration/homage/reference and how different to make it theft/infringement/derivative, even leaving the legal question aside.

The whole problem is exacerbated by the fact that there is no objective way of measuring difference or originality. People have very strong opinions about apparent rip-offs, but they're entirely subjective. It's not like the judge in this case can pull out some super secret originality yardstick from behind his bench and measure the respective differences and declare with certainty whether it is or is not above the statutory limit. The subjectiveness of such questions are fine for art history, since critics are free to squabble over such questions for generations on end. But it's a big problem for copyright law, since ultimately someone, whether it be judge or jury, is going to be put into the position of deciding the question, and their quite arbitrary and personal decision is going to be exalted to legal fact by the force of law.

Though I agree with Freire that the case is without merit, it's entirely possible that a sympathetic judge will rule against him. It might be fun to discuss and debate about such questions of originality, but it's deadly serious when potentially hundreds of thousands, if not millions of dollars ride on the answer.

1 comment:

  1. "Janine Gordon is suing photographer Ryan McGinley claiming he stole photography ideas from her"

    Then she will lose. You cannot copyright an idea. You can only copyright the EXPRESSION of that idea. You can only copyright the exact, word-for-word, image-for-image reproduction of a work. In the photographs shown, it is clear that none of these works is a reproduction of the other. I cannot imagine that this lawsuit will make it to a courtroom. On the face of it, this is not copyright infringment, which DOES NOT PROTECT IDEAS.