Art & Copyright

According to Gordon’s complaint, the trouble began nearly 10 years ago, when both Gordon and McGinley had exhibitions at the Whitney Museum of American Art -- Gordon in the 2002 Whitney Biennial, and McGinley in his break-through solo exhibition “The Kids Are Alright” the following year. McGinley’s proximity to Gordon’s work “during the preparation and display of the Whitney exhibition in which he participated,” her lawyer argues, gave him “total and complete access to view and examine the Gordon images featured in the 2002 Whitney Biennial.”

Both parties have also shown at the Schirn Kunsthalle in Frankfurt as well as at Ratio 3 gallery; Ratio 3 along with Peter Hay Halpert Fine Arts and Team Gallery, which show McGinley's photographs, are also defendants in the suit. Gordon's complaint alleges that the galleries “had the right, authority and ability to control or supervise McGinley’s actions, failures and omissions.”

McGinley’s guilt was compounded, at least in Gordon’s mind, in 2003, when she ran into him at a PS1 opening and he responded with “a fearful gasp and speedy retreat into the crowd,” according to the complaint.

Among the disputed images is a black-and-white shot of a woman flipping her head back, hair in motion. Gordon’s lawyers say that McGinley’s photo, taken 15 years later, copies her subject matter, its centered composition and its spotlighting, which in both cases illuminates the left side of the body and shadows the right.

In another image, Gordon’s subject is a young man in a mosh pit looking up toward the ceiling, his mouth agape and arms outspread. In the McGinley comparison, part of the artist’s series of carefree youth for the Levi’s campaign, the model is also marveling upward with arms outstretched, but is set against a pink sunset with falling leaves.

“This is an art world travesty, when artists can freely steal from another artist for 10 years and be praised, paid and dance in the sun all day,” Gordon said, adding that her prints go for $5,000 while those of her younger, more successful counterpart might go for $20,000.  

Former New Museum curator Dan Cameron supported Gordon's case in an affidavit. “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,” he writes.

Team Gallery owner José Freire said in an email that he, McGinley and the other galleries could not comment because the lawsuit is ongoing.

Lawyers for the defendants have moved to dismiss the suit on the grounds that the images in question “do not look alike in the slightest,” and that Gordon is “really complaining that the images share the same fundamental idea.”

Copyright law does not protect categories like ideas, principles or explanations -- only their manifestations. “Plainly,” McGinley’s motion reads, 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 lawyers, on the other hand, are putting forward a relatively expansive interpretation of copyright law, arguing that concept cannot be differentiated from expression. “Unless an artist is content merely to represent a pre-existent object (e.g. a building) or scene, it is part of his task as artist to exercise his imagination and in so doing he may create a pattern of ideas for incorporation in his finished work.

"This idea-pattern may be as much part of his work, and deserving of copyright protection, as the brushstrokes, pencil-lines, etc. The true proposition is that there is no copyright in a general idea, but that an original combination of ideas may [be protected],” Gordon’s complaint argues, citing the copyright reference book The Modern Law of Copyright and Designs.

McGinley has offered a very modest settlement, which Gordon has rejected, she said, adding that she has no plans to drop her lawsuit. She’s seeking $30,000 in statutory damages per infringement. Multiplied by 150 infringements, it could add up to real money, or at least enough to cloud any plans McGinley might have for this summer’s annual naked, cross-country road trip.

RACHEL CORBETT is news editor of Artnet Magazine. She can be reached at