Janine Gordon has filed a lawsuit against Ryan McGinley for copyright infringement, “arguing that 150 of McGinley’s photographs, including several used in an ad campaign for Levi’s, a co-defendant in the suit, are ‘substantially based’ on Gordon’s original work.” That’s one of Gordon’s pieces on the left (Plant Your Feet on the Ground, 2000), one of McGinley’s on the right (Levi’s advertisement, 2010). When I saw this my first thought was “Jesus!” - mind you, not as a somewhat mild way of uttering my exasperation at yet another one of these lawsuits (that came right after). Even if you’re not a particularly religious person (like me), with just a little bit of knowledge of art history you’re very familiar with exactly that pose, right? I will admit I was too lazy to look for an even closer match to the photographs from the lawsuit, but I’m very certain you can find one easily (if you know one, email me). So I can’t help but think that Gordon’s image might in fact be “substantially based” on a large number of religious paintings depicting Jesus. And one could probably play the same game with many other photographs involving humans (just remember how much some photojournalists love pieta-style images). That said, Sergio Muñoz Sarmiento can cover the legal side way better than I can: “most likely be — in my educated fair-use opinion — a win for McGinley. ‘Derive’ here is being used not in the fair use sense of ‘derivative’ work, but rather it is being used in the inspirational sense. Based on the images available for comparison online, McGinley is clearly inspired and influenced by Gordon’s ideas, but as both Gordon’s and McGinley’s lawyers agree, ideas are not protected under US copyright law.”
Update (13 July 2011): Here are more images - see for yourself.