NEW LEGAL BRIEF FILED IN GORDON V. MCGINLEY APPEALFeb. 2, 2012
Janine Gordon lost her well-publicized copyright lawsuit against Ryan McGinley last August when the district court judge decided there was “an utter lack of similarity” between the two photographers’ work. But now, Jah Jah (as she’s known to her hip-hop fans) is back, and she’s representing herself. Spurning McGinley’s offer to refrain from suing her for his legal expenses on the condition that she drop the case, Gordon has now submitted her first brief in her appeal.
In the 49-page document, filed yesterday with the U.S. Court of Appeals for the Second Circuit, Gordon argues that the district court judge did not even review her claims -- “none of his analyses addressed them, nor do I believe that he considered them” -- and that his judgments were simply incorrect. The court “exhibited a lack of intrinsic comprehension of art,” she wrote.
Gordon argues that the court should have applied the standards of the Visual Artists Rights Act of 1990 to her case, which would allow experts to weigh in on copyright discrepancies. Gordon had enlisted former New Museum curator Dan Cameron and dealer Volker Diehl, among others, to testify on her behalf, but the district court judge said their statements were irrelevant because infringement should be determined by lay observers.
Now, Gordon is hoping for a more expansive analysis of the 150 photographs in question -- one that looks at “protectable elements that ‘lie beneath the surface. . .’” She claims a lay person might not see, for instance, McGinley’s graphic tricks, the “minor differentiating elements” he employs such as cropping, flipping, resizing or adjusting the color palette as “a means to obscure his copying.”
Gordon’s final argument is one that seems like it could rankle a new judge. She points out that Richard Sullivan, the district court judge, handled a merger and acquisition in the 1990s for Levi’s, where McGinley worked for a time as a photographer and is a co-defendant in the suit. (See Gordon's photos compared to stills from McGinley's Levi's ad here.) Sullivan was also later “associated” with the brand while working as a litigator for the law firm Marsh & McLennan Companies.
“Although I am not accusing Hon. Judge Sullivan of any impropriety in this case,” she writes, “I do believe that Judge Sullivan should have at least informed us of a possible conflict of interest due to his direct and indirect ties to Levi Strauss and Co., and offered to recuse himself if either party felt it appropriate.”
Next up, rebuttals from McGinley and his co-defendants Team Gallery, Ratio 3 Gallery and Levi’s.